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ARGUMENT 


JOHN  QUINCY  ADAMS, 

BEFORE  THE 

SUPREME  COURT  OF  THE  UNITED  STATES, 

IN  THE  CASE  OF  THE 

UNITED  STATES,  APPELLANTS, 

vs. 

CINQUE,  AND  OTHERS,  AFRICANS, 

CAPTURED  JN  THE  SCHOONER  AMISTAD,  BY  LIEUT.  GEDNEY, 


DELIVERED  ON  THE  24th  OF  FEBRUARY  AND  1st  OF  MARCH,  1841. 

WITH  A REVIEW  OF  THE  CASE  OF  THE  ANTELOPE, 

REPORTED  IN  THE  IOtH,  IItH  AND  12th  VOLUMES  OF  WHEATON’S  REPORTS. 


NEW  YORK: 

S.  W.  BENEDICT,  128  FULTON  STREET. 


k f 


* 


. 


■ * *■ 


9 7 3'try 


ARGUMENT 

OF 

JOHN  QUINCY  ADAMS. 


May  it  please  your  Honors — 

In  rising  to  address  this  Court  as  one  of  its  attorneys  and  coun- 
sellors, regularly  admitted  at  a great  distance  of  time,  I feel  that 
an  apology  might  well  be  expeeted  where  I shall  perhaps  be  more 
likely  to  exhibit  at  once  the  infirmities  of  age  and  the  inexperience 
of  youth,  than  to  render  those  services  to  the  individuals  whose  lives 
and  liberties  are  at  the  disposal  of  this  Court  which  I would  most 
earnestly  desire  to  render.  But  as  I am  unwilling  to  employ  one 
moment  of  the  time  of  the  Court  in  anything  that  regards  my  own 
personal  situation,  I shall  reserve  what  few  observations  I may 
think  necessary  to  offer  as  an  apology  till  the  close  of  my  argu- 
ment on  the  merits  of  the  question. 

I therefore  proceed  immediately  to  say  that,  in  a consideration 
of  this  case,  I derive,  in  the  distress  I feel  both  for  myself  and  my 
clients,  consolation  from  two  sources — first,  that  the  rights  of  my 
clients  to  their  lives  and  liberties  have  already  been  defended  by 
my  learned  friend  and  colleague  in  so  able  and  complete  a man- 
ner  as  leaves  me  scarcely  anything  to  say,  and  I feel  that  such 
full  justice  has  been  done  to  their  interests,  that  any  fault  or  im- 
perfection of  mine  will  merely  be  attributed  to  its  true  cause  ; 
and  secondly,  I derive  consolation  from  the  thought  that  this 
Court  is  a Court  of  JUSTICE.  And  in  saying  so  very  trivial  a 
thing,  I should  not  on  any  other  occasion,  perhaps,  be  warranted 
in  asking  the  Court  to  consider  what  justice  is.  Justice,  as  de» 


4 


fined  in  the  Institutes  of  Justinian,  nearly  2000  years  ago,  and  as 
it  is  felt  and  understood  by  all  who  understand  human  relations 
.and  human  rights,  is — 

“ Constans  et  perpetua  voluntas,  jus  suum  quique  tribuendi,” 

“ The  constant  and  perpetual  will  to  secure  to  every  one  his  own  right.” 

And  in  a Court  of  Justice,  where  there  are  two  parties  present, 
justice  demands  that  the  rights  of  each  party  should  be  allowed 
to  himself,  as  well  as  that  each  party  has  a right,  to  be  secured 
and  protected  by  the  Court.  This  observation  is  important,  be- 
cause I appear  here  on  the  behalf  of  thirty-six  individuals,  the 
life  and  liberty  of  every  one  of  whom  depend  on  the  decision 
of  this  'Court.  The  Court,  therefore,  I trust,  in  deciding  this 
case,  will  form  no  lumping  judgment  on  these  thirty-six  individu- 
als, but  will  act  on  the  consideration  that  the  life  and  the  liberty 
of  every  one  of  them  must  be  determined  by  its  decision  for  him- 
self alone. 

They  are  here,  individually,  under  very  different  circumstances, 
and  in  very  different  characters.  Some  are  in  one  predicament, 
some  in  another.  In  some  of  the  proceedings  by  which  they  have 
been  brought  into  the  custody  and  under  the  protection  of  this 
Court,  thirty-two  or  three  of  them  have  been  charged  with  the 
crime  of  murder.  Three  or  four  of  them  are  female  children,  in- 
capable, in  the  judgment  of  our  laws,  of  the  crime  of  murder  or 
piracy,  or,  perhaps,  of  any  other  crime.  Yet,  from  the  day  when 
the  vessel  was  taken  possession  of  by  one  of  our  naval  officers, 
they  have  all  been  held  as  close  prisoners,  now  for  the  period  of 
eighteen  long  months,  under  custody  and  by  authority  of  the 
Courts  of  the  United  States.  I trust,  therefore,  that  before  the 
ultimate  decision  of  this  Court  is  established,  its  honorable  mem- 
bers will  pay  due  attention  to  the  circumstances  and  condition  of 
every  individual  concerned. 

When  I say  I derive  consolation  from  the  consideration  that  I 
stand  before  a Court  of  Justice,  I am  obliged  to  take  this  ground, 
because,  as  I shall  show,  another  Department  of  the  Government 
of  the  United  States  has  taken,  with  reference  to  this  case,  the 
ground  of  utter  injustice,  and  these  individuals  for  whom  I appear, 
stand  before  this  Court,  awaiting  their  fate  from  its  decision,  un- 
der the  array  of  the  whole  Executive  power  of  this  nation  against 
them,  in  addition  to  that  of  a foreign  nation.  And  here  arises  a 


5 


consideration,  the  most  painful  of  all  others,  in  considering  the 
duty  I have  to  discharge,  in  which,  in  supporting  the  motion  to 
dismiss  the  appeal,  I shall  be  obliged  not  only  to  investigate  and 
submit  to  the  censure  of  this  Court,  the  form  and  manner  of  the 
proceedings  of  the  Executive  in  this  case,  but  the  validity,  and  the 
motive  of  the  reasons  assigned  for  its  interference  in  this  unusual 
manner  in  a suit  between  parties  for  their  individual  rights. 

At  an  early  period  of  my  life  it  was  my  fortune  to  witness  the 
representation  upon  the  stage  of  one  of  the  tragic  masterpieces 
of  the  great  Dramatist  of  England,  or  I may  rather  say  of  the 
great  Dramatist  of  the  world,  and  in  that  scene  which  exhibits  in 
action  the  sudden,  the  instantaneous  fall  from  unbounded  power 
into  irretrievable  disgrace  of  Cardinal  Wolsey,  by  the  abrupt 
declaration  of  displeasure  and  dismission  from  the  service  of  his 
King,  made  by  that  monarch  in  the  presence  of  Lord  Surry  and 
of  the  Lord  Chamberlain ; at  the  moment  of  Wolsey’s  humiliation 
and  distress,  Surry  gives  vent  to  his  long  suppressed  resentments 
for  the  insolence  and  injuries  which  he  had  endured  from  the  fall- 
en favorite  while  in  power,  and  breaks  out  into  insulting  and  bit- 
ter  reproaches,  till  checked  by  the  Chamberlain,  who  says: 

“ Oh  ! my  Lords ; 

Press  not  a falling  man  too  far : ’tjs  Virtue.” 

The  repetition  of  that  single  line,  in  the  relative  position  of  the 
parties,  struck  me  as  a moral  principle,  and  made  upon  my  mind 
an  impression  which  I have  carried  with  me  through  all  the  chan? 
ges  of  my  life,  and  which  I trust  I shall  carry  with  me  to  my 
grave. 

It  is,  therefore,  peculiarly  painful  to  me,  under  present  circum- 
stances, to  be  under  the  necessity  of  arraigning  before  this  Court 
and  before  the  civilized  world,  the  course  of  the  existing  Admin- 
istration  in  this  case.  But  I must  do  it.  That  Government  is 
still  in  power,  and  thus,  subject  to  the  control  of  the  Court,  the 
lives  and  liberties  of  all  my  clients  are  in  its  hands,  And  if  I 
should  pass  over  the  course  it  has  pursued,  those  who  have  not 
had  an  opportunity  to  examine  the  case  and  perhaps  the  Court 
itself,  might  decide  that  nothing  improper  had  been  done,  and  that 
the  parties  I represent  had  not  been  wronged  by  the  course  pursued 
by  the  Executive.  In  making  this  charge,  or  arraignment,  as  defen- 
sive of  the  rights  of  my  clients,  I now  proceed  to  an  examination  of 


6 


the  correspondence  of  the  Secretary  of  State  with  the  ambassador 
of  her  Catholic  Majesty,  as  officially  communicated  to  Congress, 
and  published  among  the  national  documents. 

The  charge  I make  against  the  present  Executive  administra- 
tion is  that  in  all  their  proceedings  relating  to  these  unfortunate 
men,  instead  of  that  Justice , which  they  were  bound  not  less 
than  this  honorable  Court  itself  to  observe,  they  have  substituted 
Sympathy ! — sympathy  with  one  of  the  parties  in  this  conflict  of 
justice,  and  Antipathy  to  the  other.  Sympathy  with  the  white, 
antipathy  to  the  black — and  in  proof  of  this  charge  I adduce  the 
admission  and  avowal  of  the  Secretary  of  State  himself.  In  the 
letter  of  Mr.  Forsyth  to  the  Spanish  Minister  d’Argaiz,  of  13th  of 
December,  1839,  [Document  H.  R.  N.  S.  185,]  defending  the 
course  of  the  administration  against  the  reproaches  utterly  ground- 
less, but  not  the  less  bitter  of  the  Spanish  Envoy,  he  says: 

“ The  undersigned  cannot  conclude  this  communication  with- 
out calling  the  attention  of  the  Chevalier  d’Argaiz  to  the  fact , 
that  with  the  single  exception  of  the  vexatious  detention  to  which 
Messrs.  Montes  and  Ruiz  have  been  subjected  in  consequence  of 
the  civil  suit  instituted  against  them,  all  the  proceedings  in  the 
matter , on  the  part  both  the  Executive  and  Judicial  branches  of 
the  government  have  had  their  foundation  in  the  assumption  that 
these  persons  alone  were  the  parties  aggrieved  ; and  that  their  claims 
to  the  surrender  of  the  property  was  founded  in  fact  and  in  justice .” 
[pp.  29,  30.] 

At  the  date  of  this  letter,  this  statement  of  Mr.  Forsyth  was 
strictly  true.  All  the  proceedings  of  the  government,  Executive 
and  Judicial,  in  this  case  had  been  founded  on  the  assumption  that 
the  two  Spanish  slave-dealers  were  the  only  parties  aggrieved — 
that  all  the  right  was  on  their  side,  and  all  the  wrong  on  the  side 
of  their  surviving  self-emancipated  victims.  I ask  your  honors, 
was  this  justice  ? No.  It  was  not  so  considered  by  Mr.  For- 
syth himself.  It  was  sympathy , and  he  so  calls  it,  for  in  the  pre- 
ceding page  of  the  same  letter  referring  to  the  proceedings  of 
this  Government  from  the  very  first  intervention  of  Lieut.  Ged- 
ney,  he  says  : 

“ Messrs.  Ruiz  and  Montes  were  first  found  near  the  coast  of 
the  United  States,  deprived  of  their  property  and  of  their  free- 
dom, suffering  from  lawless  violence  in  their  persons,  and  in  im- 
minent and  constant  danger  of  being  deprived  of  their  lives  also. 


7 


They  were  found  in  this  distressing  and  perilous  situation  by  offi- 
cers  of  the  United  States,  who,  moved  towards  them  by  synpa - 
thetic  feeling  which  subsequently  became  as  it  were  national , imme- 
diately rescued  them  from  personal  danger,  restored  them  to  free- 
dom, secured  their  oppressors  that  they  might  abide  the  conse- 
quences of  the  acts  of  violence  perpetrated  upon  them,  and  placed 
under  the  safeguard  of  the  laws  all  the  property  which  they  claim- 
ed as  their  own,  to  remain  in  safety  until  the  competent  authori- 
ty could  examine  their  title  to  it,  and  pronounce  upon  the  ques- 
tion of  ownership  agreeably  to  the  provisions  of  the  9th  article  of 
the  treaty  of  1795.” 

This  sympathy  with  Spanish  slave-traders  is  declared  by  the 
Secretary  to  have  been  first  felt  by  Lieutenant  Gedney.  I hope 
this  is  not  correctly  represented.  It  is  imputed  to  him  and  declar- 
ed to  have  become  in  a manner  national.  The  national  sympathy 
with  the  slave-traders  of  the  baracoons  is  officially  declared  to 
have  been  the  prime  motive  of  action  of  the  government : And 
this  fact  is  given  as  an  answer  to  all  the  claims,  demands  and  re- 
proaches of  the  Spanish  minister  ! I cannot  urge  the  same  ob- 
jection to  this  that  was  brought  against  the  assertion  in  the  libel — 
that  it  said  the  thing  which  is  not — too  unfortunately  it  was  so, 
as  he  said.  The  sympathy  of  the  Executive  government,  and  as 
it  were  of  the  nation,  in  favor  of  the  slave-traders,  and  against 
these  poor,  unfortunate,  helpless,  tongueless,  defenceless  Afri- 
cans, was  the  cause  and  foundation  and  motive  of  all  these  pro- 
ceedings, and  has  brought  this  case  up  for  trial  before  your 
honors. 

I do  not  wish  to  blame  the  first  sympathies  of  Lieut.  Gedney, 
nor  the  first  action  of  the  District  and  Circuit  Courts.  The  seiz- 
ure of  the  vessel,  with  the  arrest  and  examination  of  the  Africans, 
was  intended  for  inquiry,  and  to  lead  to  an  investigation  of  the 
rights  of  all  parties.  This  investigation  has  ultimated  in  the  de- 
cision of  the  District  Court,  confirmed  by  the  Circuit  Court, 
which  it  is  now  the  demand  of  the  Executive  should  be  reversed 
by  this  Court.  The  District  Court  has  exercised  its  jurisdiction 
over  the  parties  in  interest,  and  has  found  that  the  right  was  with 
the  other  party,  that  the  decisions  of  JUSTICE  were  not  in  ac- 
cordance with  the  impulses  of  sympathy,  and  that  consequently 
the  sympathy  was  wrong  before.  And  consequently  it  now  ap- 
pears that  everything  which  has  flowed  from  this  mistaken  or  mis« 
applied  sympathy,  was  wrong  from  the  beginning. 


8 


For  I inquire  by  what  right,  all  this  sympathy,  from  Lieut.  Ged- 
ney  to  the  Secretary  of  State,  and  from  the  Secretary  of  State, 
as  it  wen,  to  the  nation,  was  extended  to  the  two  Spaniards  from 
Cuba  exclusively,  and  utterly  denied  to  the  fifty-two  victims  of 
their  lawless  violence  1 By  what  right  was  it  denied  to  the  men 
who  had  restored  themselves  to  freedom,  and  secured  their  op- 
pressors to  abide  the  consequences  of  the  acts  of  violence  perpe- 
trated by  them,  and  why  was  it  extended  to  the  perpetrators  of 
those  acts  of  violence  themselves  1 When  the  Amistad  first 
came  within  the  territorial  jurisdiction  of  the  United  States,  acts 
of  violence  had  passed  between  the  two  parties,  the  Spaniards  and 
Africans  on  board  of  her,  but  on  which  side  these  acts  were  law- 
less, on  which  side  were  the  oppressors,  was  a question  of  right 
and  wrong,  for  the  settlement  of  which,  if  the  government  and 
people  of  the  United  States  interfered  at  all,  they  were  bound  in 
duty^to  extend  their  sympathy  to  them  all ; and  if  they  intervened 
at  all  between  them,  the  duty  incumbent  upon  this  intervention 
was  not  of  favor,  but  of  impartiality — not  of  sympathy,  but  of 
justice,  dispensing  to  every  individual  his  own  right. 

Thus  the  Secretary  of  State  himself  declares  that  the  motive  for 
all  the  proceedings  of  the  government  of  the  United  States,  until 
that  time,  had  been  governed  by  sympathetic  feeling  towards  one 
of  the  patties,  and  by  the  assumption  that  all  the  right  was  on 
one  side  and  all  the  wrong  on  the  other.  It  was  the  motive  of 
Lieut.  Gedney:  the  same  influence  had  prevailed  even  in  the  ju- 
dicial proceedings  until  then : the  very  language  of  the  Secretary 
of  State  in  this  letter  breathes  the  same  spirit  as  animating  the 
executive  administration,  and  has  continued  to  govern  all  its  pro- 
ceedings on  this  subject  to  the  present  day.  It  is  but  too  true 
that  the  same  spirit  of  sympathy  and  antipathy  has  nearly  per- 
vaded the  whole  nation,  and  it  is  against  them  that  I am  in  duty 
bound  to  call  upon  this  Court  to  restrain  itself  in  the  sacred  name 

Of  JUSTICE. 

One  of  the  Judges  who  presided  in  some  of  the  preceding  tri- 
als, is  said  to  have  called  this  an  anomalous  case.  It  is  indeed 
anomalous,  and  I know  of  no  law,  but  one  which  I am  not  at 
liberty  to  argue  before  this  Court,  no  law,  statute  or  constitution, 
no  code,  no  treaty,  applicable  to  the  proceedings  of  the  Execu- 
tive or  the  Judiciary,  except  that  law,  (pointing  to  the  copy  of  the 
Declaration  of  Independence,  hanging  against  one  of  the  pillars 


9 


of  the  court-room,)  that  law,  two  copies  of  which  are  ever  before 
the  eyes  of  your  Honors.  I know  of  no  other  law  that  reaches  the 
case  of  my  clients,  but  the  law  of  Nature  and  of  Nature’s  God  on 
■which  our  fathers  placed  our  own  national  existence.  The 
circumstances  are  so  peculiar,  that  no  code  or  treaty  has  provid- 
ed for  such  a case.  That  law,  in  its  application  to  my  clients,  I 
trust  will  be  the  law  on  which  the  case  will  be  decided  by  this 
Court. 

In  the  sequel  to  the  diplomatic  correspondence  between  the  Sec- 
retary of  State  and  the  Spanish  minister  Argaiz,  relating  to  the 
case  of  the  Amistad,  recently  communicated  by  the  President  of 
the  United  States  to  the  Senate,  [Doc.  179.  12  Feb.  1841,]  the 
minister  refers  with  great  apparent  satisfaction  to  certain  resolu- 
tions of  the  Senate,  adopted  at  the  instance  of  Mr.  Calhoun,  on  the 
15th  of  April,  1840,  as  follows : 

1.  “ Resolved — That  a ship  or  vessel  on  the  high  seas,  in  time  of 
peace,  engaged  in  a lawful  voyage,  is  according  to  the  laws  of 
nations  under  the  exclusive  jurisdiction  of  the  state  to  which  her 
flag  belongs  as  much  as'if  constituting  a part  of  its  own  domain.” 

2.  “ Resolved — That  if  such  ship  or  vessel  should  be  forced,  by 
stress  of  weather,  or  other  unavoidable  cause  into  the  port,  and 
under  the  jurisdiction  of  a friendly  power,  she  and  her  cargo,  and 
persons  on  hoard,  with  their  property,  and  all  the  rights  belong- 
ing to  their  personal  relations, as  established  by  the  laws  of  the  state 
to  which  they  belong,  would  be  placed  under  the  protection  which 
the  laws  of  nations  extend  to  the  unfortunate  under  such  circum- 
stances.” 

Without  entering  into  any  discussion  as  to  the  correctness  of 
these  principles,  let  us  admit  them  to  be  true  to  their  fullest  ex- 
tent, and  what  is  their  application  to  the  case  of  the  Amistad  1 If 
the  first  of  the  resolutions  declares  a sound  principle  of  national 
law,  neither  Lieut.  Gedney,  nor  Lieut.  Meade,  nor  any  officer  of 
the  brig  Washington  had  the  shadow  of  a right  even  to  set  foot 
on  board  of  the  Amistad.  According  to  the  second  resolution, 
the  Africans  in  possession  of  the  vessel  were  entitled  to  all  the 
kindness  and  good  offices  due  from  a humane  and  Christian  nation 
to  the  unfortunate  ; and  if  the  Spaniards  were  entitled  to  the 
same,  it  was  by  the  territorial  right  and  jurisdiction  of  the  State  of 
New  York  and  of  the  Union,  only  to  the  extent  of  liberating  their 
persons  from  imprisonment.  Chevalier  d’ Argaiz,  therefore,  totally 
£ 


10 


misapprehends  the  application  of  the  principles  asserted  in  these 
resolutions  of  the  Senate,  as  indeed  Mr.  Forsyth  appears  by  his 
answer  to  this  letter  of  the  Chevalier  to  be  fully  aware.  From 
the  decisiveness  with  which  on  this  solitary  occasion  he  meets 
the  pretensions  of  the  Spanish  Envoy,  a fair  inference  may  be 
drawn  that  the  Secretary  himself  perceived  that  the  Senatorial 
resolutions,  instead  of  favoring  the  cause  of  Montes  and  Ruiz,  have 
a bearing  point  blank  against  them. 

The  Africans  were  in  possession,  and  had  the  presumptive 
right  of  ownership  ; they  were  in  peace  with  the  United  States  ; 
the  Courts  have  decided,  and  truly,  that  they  were  not  pirates  ; 
they  were  on  a voyage  to  their  native  homes — their  dulces  Argos  ; 
they  had  acquired  the  right  and  so  far  as  their  knowledge  ex- 
tended they  had  the  power  of  prosecuting  the  voyage  ; the  ship 
was  theirs,  and  being  in  immediate  communication  with  the  shore, 
was  in  the  territory  of  the  State  of  New  York  ; or,  if  not,  at  least 
half  the  number  were  actually  on  the  soil  of  New  York,  and  enti- 
tled to  all  the  provisions  of  the  law  of  nations,  and  the  protec- 
tion and  comfort  which  the  laws  of  that  State  secure  to  every  hu- 
man being  within  its  limits. 

In  this  situation  Lieut.  Gedney,  without  any  charge  or  authority 
from  his  government,  without  warrant  of  law,  by  force  of  fire 
arms,  seizes  and  disarms  them,  then  being  in  the  peace  of  that 
Commonwealth  and  of  the  United  States,  drives  them  on  board 
the  vessel,  seizes  the  vessel  and  transfers  it  against  the  will  of  its 
possessors~to  another  State.  I ask  in  the  name  of  justice,  by 
what  law  was  this  done  I Even  admitting  that  it  had  been  a case 
of  actual  piracy,  which  your  courts  have  properly  found  it  was  not, 
there  are  questions  arising  here  of  the  deepest  interest  to  the 
liberties  of  the  people  of  this  Union,  and  especially  of  the  State  of 
New  York.  Have  the  officers  of  the  U.  S.  Navy  a right  to  seize 
men  by  force,  on  the  territory  of  New  York,  to  fire  at  them,  to 
overpower  them,  to  disarm  them,  to  put  them  on  board  of  a vessel 
and  carry  them  by  force  and  against  their  will  to  another  State, 
without  warrant  or  form  of  law  1 lam  not  arraigning  Lieut.  Ged. 
ney,  but  I ask  this  Court,  in  the  name  of  justice,  to  settle  it  in 
their  minds,  by  what  law  it  was  done,  and  how  far  the  principle  it 
embraces  is  to  be  carried. 

The  whole  of  my  argument  to  show  that  the  appeal  should  be 
dismissed,  is  founded  on  an  averment  that  the  proceedings  on  the 


11 


part  of  the  United  States  are  all  wrongful  from  the  beginning. 
The  first  act,  of  seizing  the  vessel,  and  these  men,  by  an  officer  of 
the  navy,  was  a wrong.  The  forcible  arrest  of  these  men,  or  a 
part  of  them,  on  the  soil  of  New  York,  was  a wrong.  After  the 
vessel  was  brought  into  the  jurisdiction  of  the  District  Court  of 
Connecticut,  the  men  were  first  seized  and  imprisoned  under  a 
criminal  process  for  murder  and  piracy  on  the  high  seas.  Then 
they  were  libelled  by  Lieut.  Gedney,  as  property,  and  salvage 
claimed  on  them,  and  under  that  process  were  taken  into  the  cus- 
tody of  the  marshal  as  property.  Then  they  were  claimed  by 
Euiz  and  Montes  and  again  taken  into  custody  by  the  court.  The 
District  Attorney  of  Connecticut  wrote  to  the  Secretary  of  State, 
September  5th,  giving  him  an  account  of  the  matter,  stating  that 
“ the  blacks  are  indicted  for  the  murder  of  the  captain  and  mate,” 
and  “are  now  in  jail  at  New  Haven that  “ the  next  term  of  our 
Circuit  Court  sits  on  the  17th  instant,  at  which  time  I suppose,” 
— that  is  in  italics  in  the  printed  document — “ I suppose  it  will  be 
my  duty  to  bring  them  to  trial,  unless  they  are  in  some  other  way 
disposed  of.”  This  is  the  first  intimation  of  the  District  Attorney; 
it  is  easy  to  understand  in  what  “ other  way”  he  wished  them 
disposed  of.  And  he  closes  by  saying — “ should  you  have  any 
instructions  to  give  on  the  subject,  I should  like  to  receive  them 
as  soon  as  may  be.” 

On  the  9th  of  September,  he  writes  again  that  he  has  examined 
the  law,  which  has  brought  him  fully  to  the  conclusion  that  the 
Courts  of  the  United  States  cannot  take  cognizance  of  any  offence 
these  people  may  have  committed,  as  it  was  done  on  board  a ves- 
sel belonging  to  a foreign  state.  And  then  he  says, 

“I  would  respectfully  inquire,  sir,  whether  there  are  no  treaty 
stipulations  with  the  Government  of  Spain  that  would  authorize 
our  Government  to  deliver  them  up  to  the  Spanish  authorities  ; 
and  if  so,  whether  it  could  be  done  before  our  court  sits'!” 

This  is  the  second  intimation  from  the  District  Attorney.  We 
shall  find  others.  Now  it  appears  that  the  Africans  were  fully  in 
the  custody  of  the  Court,  first  on  the  criminal  charge,  and  then 
on  the  claim  to  them  as  property.  The  Court  was  to  sit  in  eight 
days,  the  District  Attorney  is  satisfied  they  cannot  be  tried,  and 
he  is  anxious  to  know  whether  they  cannot  be  disposed  of  in  some 
way  by  the  Executive,  so  that  the  Courts  of  the  United  States 
may  have  no  chance  to  decide  upon  the  case.  May  it  please  your 


12 


Honors,  I am  simply  pursuing  the  chain  of  evidence  in  this  case, 
to  show  the  effects  of  the  sympathy  in  favor  of  one  of  the  parties 
and  against  the  other,  which  the  Secretary  of  State  says  had  be” 
come  in  a manner  “national.”  The  next  document  is  a letter  of 
the  Secretary  of  State  to  the  District  Attorney,  Sept.  11,  1839  : 

“Sir  : Since  the  receipt  of  your  letter  of  the  5th  instant,  relative 
to  the  case  of  the  Spanish  schooner  ‘ Amistad,’  brought  into  the 
port  of  New  London  on  the  26th  ultimo,  by  Lieutenant  Gedney, 
of  the  surveying  brig  Washington,  a communication  has  been  ad- 
dressed to  this  department  by  the  minister  of  Her  Catholic  Ma- 
jesty, claiming  the  vessel,  cargo  and  blacks,”  [vessel,  cargo  and 
blacks,  the  Court  will  observe,]  “ on  board,  as  Spanish  property,  and 
demanding  its  immediate  release.  Mr.  Calderon’s  application  will 
be  immediately  transmitted  to  the  President  for  his  decision  upon 
it,  with  which  you  will  be  made  acquainted  without  unnecessary 
delay.  In  the  mean  time  you  will  take  care  that  no  proceeding  of 
your  Circuit  Court,  or  of  any  other  judicial  tribunal,  places  the  ves- 
sel, cargo,  or  slaves  beyond  the  control  of  the  Federal  Execu- 
tive. 

“ I am,  sir,  your  obedient  servant, 

“JOHN  FORSYTH.” 

I know  not  how,  in  decent  language,  to  speak  of  this  assertion 
of  the  Secretary,  that  the  minister  of  Her  Catholic  Majesty  had 
claimed  the  Africans  “ as  Spanish  property.”  In  Gulliver’s  no- 
vels, he  is  represented  as  traveling  among  a nation  of  beings, 
who  were  very  rational  in  many  things,  although  they  were  not 
exactly  human,  and  they  had  a very  cool  way  of  using  language 
in  reference  to  deeds  that  are  not  laudable.  When  they  wished 
to  characterize  a declaration  as  absolutely  contrary  to  truth,  they 
say  the  man  has  “ said  the  thing  that  is  not.”  It  is  not  possible 
for  me  to  express  the  truth  respecting  this  averment  of  the  Secre- 
tary of  State,  but  by  declaring  that  he  “ has  said  the  thing  that  is 
not.”  This  I shall  endeavor  to  prove  by  showing  what  the  de- 
mand of  the  Spanish  minister  was,  and  that  it  was  a totally  differ- 
ent thing  from  that  which  was  represented. 

But  I wish  first  to  beg  your  Honors’  special  attention  to  some- 
thing else  in  this  remarkable  letter  of  the  Secretary  of  State. 
He  says,  “ In  the  mean  time,  you  will  take  care  that  no  proceed- 
ing of  your  Circuit  Court,  or  of  any  other  judicial  tribunal,  places 


the  vessel,  cargo,  or  slaves  beyond  the  control  of  the  Federal 
Executive.”  Here  is  a ministerial  officer  of  the  Executive  Gov=> 
ernment,  instructing  the  District  Attorney,  before  the  Judiciary 
has  acted  upon  the  case,  to  take  care  that  no  proceeding  of  any 
court  places  these  men  beyond  reach  of  the  Federal  Executive. 
How  was  he  to  do  it!  In  what  manner  was  an  Executive  officer 
to  proceed,  so  that  neither  the  Circuit  Court  of  the  United  States, 
nor  any  state  Court,  could  dispose  of  the  vessel  or  the  men  in  any 
manner,  beyond  the  control  of  the  Federal  Executive.  A farther 
examination  of  the  correspondence  in  the  conclusion,  will  show 
how  it  was  intended  to  be  done.  But  I now  come  to  inquire  what 
was  the  real  demand  of  the  Spanish  minister,  and  to  show  what 
was  the  duty  of  the  Secretary  of  State  on  receiving  such  a de- 
mand. 

Here  we  have  the  first  letter  of  Mr.  Calderon  to  Mr.  Forsyth. 

The  name  of  this  gentleman  is  illustrious  in  the  annals  of  Spain, 
and  for  himself  personally,  during  his  residence  in  this  country,  I 
have  entertained  the  most  friendly  and  respectful  sentiments.  I 
have  enjoyed  frequent  interviews  with  him,  and  have  found  him 
intelligent,  amiable,  learned,  and  courteous.  I wish  therefore  to 
say  nothing  respecting  him  that  is  personally  disrespectful  or  un- 
kind. But  it  is  my  duty  to  comment  with  the  utmost  plainness, 
and  what  perhaps  your  Honors  will  think  severity,  on  his  official 
letter  to  the  American  Secretary  of  State.  His  letter  begins : — 

“New  York,  Sept.  6,  1839. 

“ The  undersigned,  envoy  extraordinary  and  minister  plenipo- 
tentiary of  her  Catholic  Majesty  the  Queen  of  Spain,  has  the  honor 
of  calling  the  attention  of  the  honorable  John  Forsyth,  Secretary 
of  State  of  the  United  States,  to  a recent  and  very  public  occur- 
rence of  which,  no  doubt,  Mr.  Forsyth  is  already  informed,  and  in 
consequence  of  which  it  is  the  imperious  duty  of  the  undersigned 
to  claim  an  observance  of  the  law  of  nations,  and  of  the  treaties 
existing  between  the  United  States  and  Spain.  The  occurrence 
alluded  to  is  the  capture  of  the  Spanish  schooner  ‘ Amistad.’ 

“ This  vessel  sailed  from  Havana  on  the  28th  of  June,  bound  to 
Guanaja,  in  the  vicinity  of  Porto  Principe,  under  the  command  of 
her  owner,  Don  Ramon  Ferrer,  laden  with  sundry  merchandise, 
and  with  fifty-three  negro  slaves  on  board  ; and,  previous  to  her 
departure,  she  obtained  her  clearance  ( alijo ) from  the  custom 


14 


house,  the  necessary  permit  from  the  authorities  for  the  transpor- 
tation of  the  negroes,  a passport,  and  all  the  other  documents  re- 
quired by  the  laws  of  Spain  for  navigating  a vessel  and  for  prov- 
ing ownership  of  property  ; a circumstance  particularly  important 
in  the  opinion  of  the  undersigned.” 

Here  your  Honors  will  observe  the  same  distinction  of  “ mer- 
chandise and  negroes,”  which  was  made  by  the  District  Attorney) 
showing  the  universal  sense  of  the  difference  between  merchan- 
dise and  persons.  He  goes  on  : 

“ During  the  night  of  the  30th  of  said  month,  or  about  day- 
break on  the  following  day,  the  slaves  rose  upon  the  crew,  and 
killed  the  captain,  a slave  of  his,  and  two  sailors — sparing  only 
two  persons,  after  ill-treating  and  wounding  them,  namely,  Don 
Jose  Ruiz  and  Don  Pedro  Montes  : of  whom  the  former  was 
owner  of  forty-nine  of  the  slaves,  and  the  latter  of  the  other  four. 
These  they  retained,  that  they  might  navigate  the  vessel  and  take 
her  to  the  coast  of  Africa.  Montes,  availing  himself  of  his  know- 
ledge of  nautical  affairs,  and  under  favor  of  Divine  Providence — 
‘ the  favor  of  Divine  Providence  !’ — succeeded  in  directing  the 
vessel  to  these  shores.  He  was  spoken  by  various  vessels,  from 
the  captains  of  which  the  negroes  bought  provisions,  but  to  whom, 
it  seems,  he  was  unable  to  make  known  his  distress,  being  closely 
watched.  At  length,  by  good  fortune,  he  reached  Long  Island, 
where  the  ‘ Amistad’  was  detained  by  the  American  brig-of-war 
‘Washington,’  Captain  Gedney,  who,  on  learning  the  circum- 
stances of  the  case,  secured  the  negroes,  and  took  them  with  the 
vessel  to  New  London,  in  the  state  of  Connecticut. 

“ The  conduct  of  that  commander  and  his  subalterns  toward  the 
unfortunate  Spaniards  has  been  that  which  was  to  be  expected 
from  gentlemen,  and  from  officers  in  the  service  of  an  enlightened 
nation  friendly  to  Spain.  That  conduct  will  be  appreciated  as  it 
deserves  by  my  august  sovereign,  and  by  the  Spanish  government, 
and  will  be  reciprocated  on  similar  occasions  by  the  Spaniards — 
a people  ever  grateful  for  benefits  received.”  [We  shall  see  some 
proofs  of  Spanish  gratitude,  as  we  proceed  in  the  case.] 

“The  act  of  humanity  thus  performed  would  have  been  com- 
plete, had  the  vessel  at  the  same  time  been  set  at  liberty,  and  the 
negroes  sent  to  be  tried  by  the  proper  tribunal,  and  by  the  violat- 
ed laws  of  the  country  of  which  they  are  subjects.  The  under- 
signed is  willing  to  believe  that  such  would  have  been  the  case. 


15 


had  the  general  government  been  able  to  interpose  its  authority  in 
the  first  instance,  as  it  has  probably  done  during  the  short  interval 
between  the  occurrence  of  this  affair  and  the  period  when  the  un- 
dersigned received  an  authentic  statement  of  the  facts.” 

This  is  what  the  Spanish  minister  demanded,  that  the  vessel 
should  be  set  at  liberty,  and  the  negroes  sent  to  Cuba  to  be  tried. 
And  he  is  so  confident  in  the  disposition  the  United  States  in  favor 
of  this  demand,  that  he  even  presumes  the  President  of  the  United 
States  had  already  immediately  dispatched  an  order  to  the  Court 
in  Connecticut,  to  stay  its  proceedings  and  deliver  up  the  negroes 
to  the  Government  of  Spain. 

What  combination  of  ideas  led  to  that  conclusion,  in  the  mind 
of  Mr.  Calderon,  I am  not  competent  to  say.  He  evidently  sup- 
poses the  President  of  the  United  States  to  possess  u7hat  -we  un- 
derstand by  arbitrary  power — the  power  to  decide  cases  and 
to  dispose  of  persons  and  of  property,  mero  motu , at  his  own  dis- 
cretion, and  without  the  intervention  of  any  court.  What  led  him 
to  this  imagination  I am  unable  to  say.  He  goes  on  to  say  that 
the  officers  of  the  Washington,  in  the  service  of  the  United 
States,  have  presented  to  that  incompetent  Court , — the  U.  S.  Dis- 
trict Court  in  Connecticut — a petition,  claiming  salvage  : “ a claim 
which,  in  view  of  existing  treaties,  the  undersigned  conceives  can- 
not be  allowed  in  the  sense  in  which  it  is  made.”  This  is  that 
most  grateful  nation  ! The  deliverers  of  these  two  Spaniards,  the 
representative  of  a most  grateful  nation  insists,  are  trot  deserving 
of  any  recompense  whatever  ! 

Now,  I beg  your  Plonors  to  see  if  there  is,  among  all  these  spe- 
cifications, any  one  demand  that  corresponds  with  that  wdiich  the 
Secretary  of  State  avers  to  have  been  made.  He  demands, 

1st.  That  the  vessel  be  immediately  delivered  up  to  her  owner, 
together  with  every  article  found  on  board  at  the  time  of  her  cap- 
ture  by  the  Washington,  without  any  payment  being  exacted  on 
the  score  of  salvage,  or  any  charges  made,  other  than  those  spe- 
cified in  the  treaty  of  1795,  article  1st. 

Yet  he  had  already  said  the  captain,  and  owner,  Ferrer,  was 
killed. 

“ 2d.  That  it  be  declared  that  no  tribunal  in  the  United  States 
has  the  right  to  institute  proceedings  against,  or  to  impose  penal- 
ties upon,  the  subjects  of  Spain,  for  crimes  committed  on  board  a 
Spanish  vessel,  and  in  the  waters  of  the  Spanish  territory.” 


16 


Declared,  by  whom  ? By  the  President  of  the  United  States. 
Of  course,  he  does  not  demand  that  the  “ incompetent  tribunal” 
in  Connecticut,  before  which  the  suit  was  brought,  should  declare 
this,  but  that  the  President  of  the  United  States  should  issue  a 
proclamation,  declaring  that  no  court  in  this  country  could  hold 
cognizance  of  the  case.  Is  there  in  this  a demand  that  the  ne- 
groes should  be  delivered  up  as  Spanish  property  1 It  is  a direct 
protest  against  any  judicial  tribunal  taking  cognizance  of  the  case, 
and  that  the  President  should  issue  a proclamation  to  prevent  any 
such  proceedings  whatever. 

“ 3d.  That  the  negroes  be  conveyed  to  Havana,  or  be  placed  at 
the  disposal  of  the  proper  authorities  in  that  part  of  Her  Majesty’s 
dominions,  in  order  to  their  being  tried  by  the  Spanish  laws  which 
they  have  violated  ; and  that,  in  the  mean  time,  they  be  kept  in 
safe  custody,  in  order  to  prevent  their  evasion.” 

In  what  capacity  does  he  demand  that  the  President  of  the  Unit- 
ed  States  should  place  himself?  Is  it  a demand  to  deliver  up  these 
people  as  property?  No.  Is  it  that  they  should  deliver  them  to 
the  minister  himself,  as  the  representative  of  the  Spanish  govern- 
ment, to  be  disposed  of  according  to  the  laws  of  Spain  ? No.  It 
demands  of  the  Chief  Magistrate  of  this  nation  that  he  should  first 
turn  himself  into  a jailer,  to  keep  these  people  safely,  and  then 
into  a tipstaff  to  take  them  away  for  trial  among  the  slave-traders 
of  the  baracoons.  Was  ever  such  a demand  made  upon  any 
government  ? He  must  seize  these  people  and  keep  them  safely, 
and  carry  them,  at  the  expense  of  the  United  States,  to  another 
country  to  be  tried  for  their  lives  ! Where  in  the  law  of  nations 
is  there  a warrant  for  such  a demand  1 

May  it  please  your  Honors — If  the  President  of  the  United 
States  had  arbitrary  and  unqualified  power,  he  could  not  satisfy 
these  demands.  He  must  keep  them  as  a jailer  ; he  must  then 
send  them  beyond  seas  to  be  tried  for  their  lives.  I will  not 
recur  to  the  Declaration  of  Independence — your  Honors  have  it 
implanted  in  your  hearts — but  one  of  the  grievous  charges  brought 
against  George  III.  was,  that  he  had  made  laws  for  sending  men 
beyond  seas  for  trial.  That  was  one  of  the  most  odious  of  those 
acts  of  tyranny  which  occasioned  the  American  revolution.  The 
whole  of  the  reasoning  is  not  applicable  to  this  case,  but  I submit 
to  your  Honors  that,  if  the  President  has  the  power  to  do  it  in  the 
case  of  Africans,  and  send  them  beyond  seas  for  trial,  he  could  do 


17 


it  by  the  same  authority  in  the  case  of  American  citizens.  By  a 
simple  order  to  the  marshal  of  the  district,  he  could  just  as  well 
seize  forty  citizens  of  the  United  States,  on  the  demand  of  a fo- 
reign minister,  and  send  them  beyond  seas  for  trial  before  a foreign 
court.  The  Spanish  minister  farther  demands — 

“ 4th.  That  if,  in  consequence  of  the  intervention  of  the  autho- 
rities  of  Connecticut,  there  should  be  any  delay  in  the  desired 
delivery  of  the  vessel  and  the  slaves,  the  owners  both  of  the  for- 
mer be  indemnified  for  the  injury  that  may  accrue  to  them.” 

Now,  how  are  all  these  demands  to  be  put  together  1 First,  he 
demands  that  the  United  States  shall  keep  them  safely,  and  send 
them  to  Cuba,  all  in  a lump,  the  children  as  well  as  Cinque  and 
Grabbo.  Next,  he  denies  the  power  of  our  courts  to  take  any 
cognizance  of  the  case.  And  finally,  that  the  owners  of  the  slaves 
shall  be  indemnified  for  any  injury  they  may  sustain  in  their  pro- 
perty.  We  see  in  the  whole  of  this  transaction,  a confusion  of 
ideas  and  a contradiction  of  positions,  from  confounding  together 
the  two  capacities  in  which  these  people  are  attempted  to  beheld. 
One  moment  they  are  viewed  as  merchandise,  and  the  next  as 
persons.  '■The  Spanish  minister,  the  Secretary  of  State,  and  every 
one  who  has  had  anything  to  do  with  the  case,  all  have  run  into 
these  absurdities.  These  demands  are  utterly  inconsistent.  First, 
they  are  demanded  as  persons,  as  the  subjects  of  Spain,  to  be  de- 
livered up  as  criminals,  to  be  tried  for  their  lives,  and  liable  to  be 
executed  on  the  gibbet.  Then  they  are  demanded  as  chattels,  the 
same  as  so  many  bags  of  coffee,  or  bales  of  cotton,  belonging  to 
owners,  wIig  have  a right  t©  be  indemnified  for  any  injury  to  their 
property. 

I now  ask  if  there  is,  in  any  one  or  in  all  those  specifications, 
that  demand  which  the  Secretary  of  State  avers  the  Spanish  Min- 
ister had  made,  and  which  is  the  basis  of  the  whole  proceeding  in 
this  case  on  the  part  of  the  Executive. 

The  letter  of  the  Secretary,  which  is  the  foundation  of  the 
whole  proceeding  of  the  District  Attorney,  in  making  the  United 
States  a party,  on  the  ground  of  a demand  by  the  Spanish  Minister 
for  the  delivery  of  these  people  as  property,  “ says  the  thing  that 
is  not.”  The  letter  proceeds: 

“In  support  of  these  claims,  the  undersigned  invokes  the  law 
of  nations,  the  stipulations  of  existing  treaties,  and  those  good 
feelings” — [good  feelings,  indeed,  he  might  well  say,  where  all 

3 


18 


the  feelings  were  in  favor  of  his  demand] — “ so  necessary  to  the 
maintenance  of  the  friendly  relations  that  subsist  between  the 
two  countries,  and  are  so  interesting  to  both. 

“ The  undersigned  would  be  apprehensive  of  offending  Mr.  For- 
syth by  supposing  it  in  the  least  degree  necessary  to  bring  to  his 
recollection  his  own  well-known  construction  ( disposiciones ) of 
the  law  of  nations,  in  a case  analogous  to  the  one  under  conside- 
ration.” 

This  is  what  the  logicians  call  argumentum  ad  hominem — an  ap- 
peal, first  to  the  feelings  of  the  individual,  not  to  his  sense  of 
justice.  Fie  then  brings  up  to  Mr.  Forsyth  his  own  construction 
of  the  law  of  nations,  as  given  in  another  case,  which  he  deems 
analogous.  Perhaps  I may  be  justified  in  conjecturing  to  what 
case  he  alludes,  and  I will  say  that,  if  he  alludes  to  any  case  of 
public  notoriety,  I shall  be  able  to  show,  before  I close,  that  there 
is  no  analogy  to  this  case. 

M.  Calderon  de  la  Barca  then  refers  to  several  treaty  stipula- 
tions in  support  of  his  demand,  and  particularly  the  8th,  9th,  and 
10th  articles  of  the  treaty  of  1795,  continued  in  force  by  the 
treaty  of  1 8 19. 

“ Akt.  8.  In  case  the  subjects  and  inhabitants  of  either  party, 
with  their  shipping,  whether  public  and  of  war,  or  private  and  of 
merchants,  be  forced,  through  stress  of  weather,  pursuit  of  pirates 
or  enemies,  or  any  other  urgent  necessity,  for  seeking  of  shelter 
and  harbor,  to  retreat  and  enter  into  any  of  the  rivers,  bays,  roads, 
or  ports,  belonging  to  the  other  party,  they  shall  be  received  and 
rented  with  all  humanity,  and  enjoy  all  favor,  protection,  and 
help ; and  they  shall  be  permitted  to  refresh  and  provide  them- 
selves, at  reasonable  rates,  with  victuals  and  all  things  needful  for 
the  subsistence  of  their  persons,  or  reparation  of  their  ships,  and 
prosecution  of  their  voyage  ; and  they  shall  noways  be  hindered 
from  returning  out  of  the  said  ports  or  roads,  but  may  remove 
and  depart  when  and  whither  they  please,  without  any  let  or  hin- 
drance.” 

This  is  a provision  for  vessels  with  their  owners,  driven  into 
port  by  distress.  Who  was  the  Spanish  owner  here  with  his  ship? 
There  was  none.  I say  the  Africans  were  here  with  their  ship. 
If  you  say  the  original  owner  is  referred  to,  in  whose  name  the 
ship’s  register  was  given,  he  was  dead,  he  was  not  on  board,  and 
could  not  claim  the  benefit  of  this  article.  The  vessel  either  be 


19 


longed  to  the  Africans,  in  whose  possession  it  was  found,  and  who 
certainly  had  what  is  everywhere  the  first  evidence  of  property, 
or  there  was  no  person  to  whom  this  article  could  apply,  and  it 
was  not  casus  fcederis.  The  truth  is,  this  article  was  not  intended 
to  apply  to  such  a case  as  this,  but  to  the  common  case,  in  regard 
to  which  it  has  doubtless  been  carried  into  execution  hundreds  of 
times,  in  meeting  the  common  disasters  of  maritime  life. 

The  Africans,  who  certainly  had  the  prima  facie  title  to  the 
property,  did  not  bring  the  vessel  into  our  waters  themselves,  but 
wrere  brought  here  against  their  will,  by  the  two  Spaniards,  by 
stratagem  and  deception.  Now,  if  this  court  should  consider,  as 
the  courts  below  have  done,  that  the  original  voyage  from  Lom- 
boko,  in  Africa,  was  continued  by  the  Spaniards  in  the  Amistad, 
and  that  pursuing  that  voyage  was  a violation  of  the  laws  of  the 
United  States,  then  the  Spaniards  are  responsible  for  that  offence. 
The  deed  begun  in  Africa  was  not  consummated  according  to  its 
original  intention,  until  the  negroes  were  landed  at  their  port  of 
final  destination  in  Porto  Principe.  The  clandestine  landing  in 
Havana,  the  unlawful  sale  in  the  barracoons,  the  shipment  on 
board  the  Amistad,  were  all  parts  of  the  original  transaction. 
And  it  was  in  pursuit  of  that  original  unlawful  intent  that  the 
Spaniards  brought  the  vessel  by  stratagem  into  a port  of  the  Unit- 
ed States.  Does  the  treaty  apply  to  such  voyages?  Suppose  the 
owner  had  been  on  board,  and  iiis  voyage  lawful,  what  does  the 
treaty  secure  to . him  1 Why.  that  he  might  repair  his  ship,  and 
purchase  refreshments,  and  continue  his  voyage.  Ruiz  and  Mon. 
tes  could  not  continue  the  voyage.  But,  suppose  the  article 
applicable,  and  what  were  the  United  States  to  do  ? They  must 
place  those  on  board  the  ship  in  the  situation  they  were  in  when 
taken,  that  is,  the  Africans  in  possession,  with  the  two  Spaniardg 
as  their  prisoners,  or  their  slaves,  as  the  case  might  be  ; the  ne. 
groes  as  masters  of  the  ship,  to  continue  their  voyage,  which  on 
their  part  was  certainly  lawful. 

If  any  part  of  the  article  was  applicable  to  the  case  it  was  in 
favor  of  the  Africans.  They  were  in  distress,  and  were  brought 
into  our  waters  by  their  enemies,  by  those  who  sought,  and  who 
are  still  seeking,  to  reduce  them  from  freedom  to  slavery,  as  a 
reward  for  having  spared  their  lives  in  the  fight.  If  the  good 
offices  of  the  government  are  to  be  rendered  to  the  proprietors 
of  shipping  in  distress,  they  are  due  to  the  Africans  only,  and  the 


20 


United  States  are  now  bound  to  restore  the  ship  to  the  Africans, 
and  replace  the  Spaniards  on  board  as  prisoners.  But  the  article 
is  not  applicable  at  all.  It  is  not  a casus  fcederis.  The  parties  to 
the  treaty  never  could  have  had  any  such  case  in  view.  The 
transaction  on  board  of  the  vessel  after  leaving  Havana  entirely 
changed  the  circumstances  of  the  parties,  and  conferred  rights 
on  my  most  unfortunate  clients,  which  cannot  but  be  regarded  by 
this  honorable  court. 

Next  we  have  article  9: 

“Art.  9.  All  ships  and  merchandise,  of  what  nature  soever, 
which  shall  be  rescued  out  of  the  hands  of  any  pirates  or  robbers 
on  the  high  seas,  shall  be  brought  into  some  port  of  either  state, 
and  shall  be  delivered  to  the  custody  of  the  officers  of  that  port, 
in  order  to  be  taken  care  of,  and  restored  entire  to  the  true  pro- 
prietor, as  soon  as  due  and  sufficient  proof  shall  be  made  con- 
cerning the  property  thereof.” 

Was  this  ship  rescued  out  of  the  hands  of  pirates  and  robbers'? 
Is  this  Court  competent  to  declare  it  ? The  Courts  below  have 
decided  that  they  have  no  authority  to  try,  criminally,  what  hap- 
pened on  board  the  vessel.  They  have  then  no  right  to  regard 
those  who  forcibly  took  possession  of  the  vessel  as  pirates  and 
robbers.  • If  the  sympathies  of  Lieutenant  Gedney,  which  the 
Secretary  of  State  says  had  become  national,  had  been  felt  for  all 
the  parties,  in  due  proportion  to  their  sufferings  and  their  deserts, 
who  were  the  pirates  and  robbers?  Were  they  the  Africans'? 
When  they  were  brought  from  Lomboko,  in  the  Tecora,  against 
the  laws  of  Spain,  against  the  laws  of  the  United  States,  and 
against  the  law  of  nations,  so  far  as  the  United  States,  and  Spain, 
and  Great  Britain,  are  concerned,  who  were  the  robbers  and  pi- 
rates I And  when  the  same  voyage,  in  fact,  was  continued  in  the 
Amistad,  and  the  Africans  were  in  a perishing  condition  in  the 
hands  of  Ruiz,  dropping  dead  from  day  to  day  under  his  treat- 
ment,, were  they  the  pirates  and  robbers  T This  honorable  Court 
will  observe  from  the  record  that  there  were  fifty-four  Africans 
who  left  the  Havana.  Ruiz  says  in  his  libel  that  nine  had  died 
before  they  reached  our  shores.  The  marshal’s  return  shows  that 
they  were  dying  day  after  day  from  the  effects  of  their  sufferings. 
One  died  before  the  Court  sat  at  New  London.  Three  more  died 
before  the  return  was  made  to  the  Court  at  Hartford — only  seven- 
teen  days — and  three  more  between  that  and  November.  Sixteen 


21 


fell  victims  before  November,  and  from  that  time  not  one  has 
died.  Think  only  of  the  relief  and  benefit  of  being  restored  to 
the  absolute  wants  of  human  nature.  Although  placed  in  a con- 
dition which,  if  applied  to  forty  citizens  of  the  United  States,  we 
should  call  cruel,  shut  up  eighteen  months  in  a prison,  and  enjoy- 
ing only  the  tenderness  which  our  laws  provide  for  the  worst  of 
criminals,  so  great  is  the  improvement  of  their  condition  from 
what  it  was  in  the  hands  of  Ruiz,  that  they  have  perfectly  recov- 
ered their  health,  and  not  one  has  died ; when,  before  that  time, 
they  were  perishing  from  hour  to  hour. 

At  the  great  day  of  accounts,  may  it  please  the  Court,  who  is 
to  be  responsible  for  those  sixteen  souls  that  died  1 Ruiz  claims 
those  sixteen  as  his  property,  as  merchandise.  How  many  of 
them,  at  his  last  hour,  will  pass  before  him  and  say,  “ Let  me  sit 
heavy  on  thy  soul  to-morrow  !” 

Who,  then,  are  the  tyrants  and  oppressors  against  whom  our 
laws  are  invoked  I Who  are  the  innocent  sufferers,  for  whom  we 
are  called  upon  to  protect  this  ship  against  enemies  and  robbers  I 
Certainly  not  Ruiz  and  Montes. 

But,  independently  of  this  consideration,  the  article  cannot  ap- 
ply to  slaves.  It  says  ships  and  merchandise.  Is  that  language 
applicable  to  human  beings  1 Will  this  Court  so  affirm  1 It  says 
they  shall  be  restored  entire.  Is  it  a treaty  between  cannibal  na- 
tions, that  a stipulation  is  needed  for  the  restoration  of  merchan- 
dise entire,  to  prevent  parties  from  cutting  off  the  legs  and  arms 
of  human  beings  before  they  are  delivered  up  1 The  very  word 
entire  in  the  stipulation  is  of  itself  a sufficient  exclusion  of  human 
beings  from  the  scope  of  the  article.  But  if  it  was  intended  to 
embrace  human  beings,  the  article  would  have  included  a provis- 
ion for  their  subsistence  until  they  are  restored,  and  an  indemni- 
fication for  their  maintenance  to  the  officers  who  are  charged  with 
the  execution  of  the  stipulation.  And  there  is  perhaps  needed  a 
provision  with  regard  to  the  institutions  of  the  free  states,  to  pre- 
vent a difficulty  in  keeping  human  beings  in  the  custom  house, 
without  having  them  liable  to  the  operation  of  the  local  law,  the 
habeas  corpus,  and  the  rights  of  freedom. 

But  with  regard  to  article  9,  I will  speak  of  my  own  knowledge, 
for  it  happened  that  on  the  renewal  of  the  treaty  in  1819,  the  whole 
of  the  negotiations  with  the  then  minister  of  Spain  passed  through 
my  hands,  and  I am  certain  that  neither  of  us  ever  entertained  an 
idea  that  this  word  merchandise,  was  to  apply  to  human  beings. 


22 


Mr.  Calderon  also  quotes  article  10. 

“Art.  10.  When  any  vessel  of  either  party  shall  be  wrecked, 
foundered,  or  otherwise  damaged,  on  the  coasts  or  within  the  do- 
minion of  the  other,  their  respective  subjects  or  citizens  shall  re- 
ceive, as  well  for  themselves  as  for  their  vessels  and  effects,  the 
same  assistance  which  would  be  due  to  the  inhabitants  of  the  coun- 
try where  the  damage  happens,  and  shall  pay  the  same  charges 
and  dues  only  as  the  said  inhabitants  would  be  subject  to  pay  in  a 
like  case ; and  if  the  operations  of  repair  should  require  that  the 
whole  or  any  part  of  the  cargo  be  unladen,  they  shall  pay  no  du- 
ties, charges,  or  fees,  on  the  pait  which  they  shall  relade  and 
carry  away.” 

This  article,  again,  has  nothing  to  do  with  the  case.  The 
Amistad  was  neither  wrecked  nor  foundered,  nor  otherwise  da- 
maged. She  came  into  our  waters  voluntarily,  so  far  as  the  Span- 
iards were  concerned,  but  involuntarily,  so  far  as  concerned  the 
Africans,  who  were  in  possession  of  the  vessel.  They  were  in- 
tentionally prosecuting  a voyage  to  Africa,  but  were  brought  to 
our  shores  by  deception,  and  against  their  wills.  This  is  not  casus 
foederis.  The  treaty  has  no  application  here.  But  if,  by  any  lati- 
tude of  construction,  it  could  be  applied,  its  benefits  belong  to  the 
Africans,  for  they  were  pursuing  a lawful  voyage,  and  not  to  the 
Spaniards,  who  were  on  an  unlawful  voyage,  in  the  prosecution 
of  the  slave  trade. 

But  the  article  says  the  same  assistance  shall  be  afforded  that 
our  own  citizens  would  be  entitled  to  receive  in  like  circum- 
stances. Let  us  apply  the  rule.  Suppose  the  Amistad  had  been 
a vessel  of  the  United  States,  owned  and  manned  by  citizens  of 
the  United  States,  and  in  like  circumstances.  Say  it  was  a Balti- 
more clipper,  fitted  for  the  African  slave  trade,  and  having  per- 
formed a voyage,  had  come  back  to  our  shores,  directly  or  indi 
rectly,  with  fifty-four  African  victims  on  board,  and  was  thus 
brought  into  port — what  would  be  the  assistance  guarantied  by 
our  laws  to  American  citizens,  in  such  circumstances  ? The  cap- 
tain would  be  seized,  tried  as  a pirate,  and  hung  ! And  every 
person  concerned,  either  as  owners  or  on  board  the  ship,  would  be 
severely  punished.  The  law  makes  it  a capital  offence  for  the 
captain,  and  no  appeal  to  this  Court  would  save  him  from  the  gib- 
bet. Is  that  the  assistance  which  the  Spanish  minister  invokes  for 
Ruiz  and  Montes?  That  is  what  our  laws  would  secure  to  our 
own  citizens  in  like  circumstances.  And  perhaps  it  would^  be  a 


23 


reward  nearer  their  merits  than  the  restoration  of  these  poor  ne- 
groes to  them,  or  enabling  them  to  complete  their  voyage. 

But  my  clients  are  claimed  under  the  treaty  as  merchandise, 
rescued  from  pirates  and  robbers.  Who  were  the  merchandise, 
and  who  were  the  robbers  "l  According  to  the  construction  of  the 
Spanish  minister,  the  merchandise  were  the  robbers,  and  the  rob- 
bers  were  the  merchandise.  The  merchandise  was  rescued  out  of 
its  own  hands,  and  the  robbers  were  rescued  out  of  the  hands  of 
the  robbers.  Is  this  the  meaning  of  the  treaty  ? Will  this  Court 
adopt  a rule  of  construction  in  regard  to  solemn  treaties  that  will 
sanction  such  conclusions'?  There  is  a rule  in  Vattel  that  no 
construction  shall  be  allowed  to  a treaty  which  makes  it  absurd. 
Is  any  thing  more  absurd  than  to  say  these  forty  Africans  are  rob- 
bers, out  of  whose  hands  they  have  themselves  been  rescued! 
Can  a greater  absurdity  be  imagined  in  construction  than  this, 
which  applies  the  double  character  of  robbers  and  of  merchandise 
to  human  beings  ? 

May  it  please  your  Honors,  there  is  not  one  article  of  the  treaty 
that  has  the  slightest  application  to  this  case,  and  the  Spanish 
minister  has  no  more  ground  for  appealing  to  the  treaty,  as  a war- 
rant for  bis  demand,  than  he  has  for  relying  on  the  law  of  nations. 

The  next  argument  that  follows  is  so  peculiar  that  I find  it  diffi- 
cult to  give  a distinct  idea  of  its  pupose  or  application.  He 
says, 

“ The  crime  in  question  is  one  of  those  which,  if  permitted  to 
pass  unpunished,  would  endanger  the  internal  tranquillity  and  the 
safety  of  the  island  of  Cuba,  where  citizens  of  the  United  States 
not  only  carry  on  a considerable  trade,  but  where  they  possess 
territorial  properties  which  they  cultivate  with  the  labor  of  Afri- 
can slaves.  These,  on  learning  that  the  crime  alluded  to  had  been 
committed  with  impunity,  (and  their  friends  would  not  fail  to  ac- 
quaint them  with  the  fact)  would  lose  none  of  the  opportunities 
for  attempting  revolt  and  evasion,  which  are  afforded  by  the  fre- 
quent and  daily  necessity  of  conveying  negroes  by  sea  from  one 
quarter  of  the  island  to  another ; and  to  guard  against  this  it  would 
be  necessary  to  use  additional  precautions  at  a great  expense.” 

I believe,  may  it  please  the  Court,  that  this  is  not  a good  argu- 
ment before  this  court,  to  determine  questions  of  law  and  justice 
by  the  consideration  that  there  are  American  citizens  who  own 
plantations  in  the  island  of  Cuba,  which  they  cultivate  by  the  la- 


24 


bor  of  slaves.  They  own  their  plantations  and  slaves  there,  sub- 
ject to  the  laws  of  Spain,  which  laws  declare  the  African  slave 
trade  to  be  felony.  The  Spanish  minister  has  no  right  to  appeal 
to  our  courts  to  pass  a particular  sentence  between  parties  in  a 
suit,  by  considerations  of  their  personal  interest,  or  that  of  other 
American  citizens  in  the  Island  of  Cuba.  What  would  become  of 
the  liberties  of  this  nation  if  our  courts  are  to  pass  sentence  be- 
tween parties,  upon  considerations  of  the  effect  it  may  have  upon 
the  interest  of  American  citizens,  scattered  as  they  may  be  in  all 
parts  of  the  world  1 If  it  is  a valid  consideration  when  applied  to 
Cuba  and  the  American  owners  of  sugar  estates  and  slaves  there, 
it  applies  equally  to  all  other  countries  where  American  citizens 
may  have  property  ; to  China,  Hindostan,  or  the  Feejee  Islands. 
It  was  no  proper  argument  for  the  Spanish  minister  to  urge  upon 
the  American  Secretary  of  State.  It  was  undoubtedly  calculated 
arid  designed  to  influence  his  sympathy  in  the  case — that  sympa- 
thy with  one  of  the  parties  which  he  says  had  become  national. 
It  was  calculated  to  excite  and  to  influence  the  Secretary  of  State 
not  only  by  the  effect  to  be  produced  in  the  island  of  Cuba,  but 
perhaps  also  by  a regard  to  certain  interests  nearer  home.  But 
was  that  JUSTICE  ? Was  that  a ground  on  which  courts  of  jus- 
tice will  decide  cases  1 I trust  not. 

There  are  a few  portions  of  this  letter,  which  I had  rather  your 
Honors  would  read  when  you  are  together  in  consultation,  than  to 
read  them  myself  in  this  place.  I_will  not  trust  myself  to  com- 
ment upon  them  as  they  deserve.  I trust  that  your  Honors,  in  the 
pursuit  of  JUSTICE,  will  read  them,  as  the  document  will  be  in 
your  hands,  and  you  will  see  why  I abstain  from  doing  it.  Mr. 
Calderon  proceeds  to  say, 

“ If,  on  the  other  hand,  they  should  be  condemned  by  the  in- 
competent tribunal  that  has  taken  upon  itself  to  try  them  as  pi- 
rates and  assassins,  the  infliction  of  capital  punishment  in  this  case 
would  not  be  attended  with  the  salutary  effects  had  in  view  by  the 
law  when  it  resorts  to  this  painful  and  terrible  alternative,  name- 
ly, to  prevent  the  commission  of  similiar  offences.  In  such  case, 
the  indemnification  I officially  ask  for  the  owners  would  be  a very 
slender  compensation  ; for,  if  the  property  remained  unimpaired, 
as  it  would  remain,  the  satisfaction  due  to  the  public  would  not 
be  accorded.” 

And  that  is  a reason  why  the  President  of  the  United  States 


25 


was  to  issue  his  lettre  de  cachet , and  send  these  unfortunate  indi- 
viduals to  Cuba.  I abstain  now  from  reading  the  subsequent  pas- 
sages.* He  concludes  by  saying, 

“ In  the  islands  above  mentioned  the  citizens  of  the  United 
States  have  always  met  with  a favorable  reception  and  kind  treat- 
ment. The  Spanish  Government,  for  the  protection  of  their  pro- 
perty, would  immediately  accord  the  extradition  of  any  slaves  that 
might  take  refuge  there  from  the  southern  states.  Being  itself 
exact  in  the  observance  of  treaties,  it  claims  the  more  justly  the 
execution  of  them,  and  a reciprocal  good  correspondence,  from  a 
nation,  the  ally  and  neighbor  of  Spain,  to  whom  so  many  proofs 
have  been  afforded  of  the  high  degree  in  which  her  friendship  is 
esteemed.” 

They  will  readily  yield  fugitive  slaves ! Was  this  an  argument, 
I ask  the  honorable  Court,  to  be  addressed  to  the  Secretary  of 
State  1 Is  it  upon  these  principles  that  cases  are  to  be  decided  ? 
Is  it  by  these  considerations  that  the  action  of  governments  is  to 
be  determined  1 Shall  these  men  be  given  up  on  the  offer  of  an 
equivalent  1 “ If  you  will  deliver  these  Africans  to  me,  for  whose 

* Mr.  Adams’  forbearance  will  hardly  be  appreciated  unless  it  is  known  what 
it  was  that  he  omitted  to  read.  That  portion  of  the  letter  of  Mr.  Calderon  is 
therefore  appended  to  this  note. 

“ The  dread  of  a repetition  of  these  acts  might  be  expected  to  take  possession  of 
the  minds  of  the  people  residing  in  the  islands  of  Cuba  and  Porto-Rico  ; and,  in 
lieu  of  the  harmony  and  good  feeling  subsisting  between  them  and  the  citizens  of 
the  United  States,  it  would  not  be  surprising,  nor  would  it  afford  a cause  for  com- 
plaint, if  sentiments  were  awakened  of  a different  nature,  and  highly  prejudicial  to 
the  interests  of  both  parties.  How  can  the  man  who  promotes  or  advocates  dis- 
cord in  families  expect  to  be  regarded  with  benevolence  ? or  how  can  he  who  acts 
in  such  a manner  pretend  to  the  title  of  friend  ? 

“ The  undersigned  does  not  apprehend  that  the  fears  herein  expressed  by  him  will 
be  deemed  exaggerated  or  unfounded.  No  one  is  ignorant  of  the  existence  of  a 
considerable  number  of  persons  who,  prompted  by  a zeal  which  it  does  not  belong 
to  him  to  qualify,  are  employing  all  the  means  which  knowledge  and  wealth  can 
afford  for  effecting,  at  any  price,  the  emancipation  of  the  slaves.  Many  of  them, 
either  because  they  are  persuaded  of  the  philanthropy  of  their  designs,  or  assuming 
this  virtue  as  a cloak,  have  no  hesitation  in  repaying  the  hospitality  they  receive 
by  the  seduction  of  the  slaves  of  their  host,  especially  if  they  are  skilful  in  any 
trade. 

“ Having'induced  them  to  abandon  their  masters,  they  ship  them  onboard  some 
vessel,  where  they  retain  them  in  a worse  state  of  captivity  than  before,  or  send 
them  to  the  United  States  to  beset  at  liberty;  thus  appropriating  to  themselves  the 
property  of  another,  and  deliberately  committing  a theft,  while,  perhaps,  they  be- 

4 


24 


bor  of  slaves.  They  own  their  plantations  and  slaves  there,  sub- 
ject to  the  laws  of  Spain,  which  laws  declare  the  African  slave 
trade  to  be  felony.  The  Spanish  minister  has  no  right  to  appeal 
to  our  courts  to  pass  a particular  sentence  between  parties  in  a 
suit,  by  considerations  of  their  personal  interest,  or  that  of  other 
American  citizens  in  the  Island  of  Cuba.  What  would  become  of 
the  liberties  of  this  nation  if  our  courts  are  to  pass  sentence  be- 
tween parties,  upon  considerations  of  the  effect  it  may  have  upon 
the  interest  of  American  citizens,  scattered  as  they  may  be  in  all 
parts  of  the  world  1 If  it  is  a valid  consideration  when  applied  to 
Cuba  and  the  American  owners  of  sugar  estates  and  slaves  there, 
it  applies  equally  to  all  other  countries  where  American  citizens 
may  have  property  ; to  China,  Hindostan,  or  the  Feejee  Islands. 
It  was  no  proper  argument  for  the  Spanish  minister  to  urge  upon 
the  American  Secretary  of  State.  It  was  undoubtedly  calculated 
and  designed  to  influence  his  sympathy  in  the  case — that  sympa- 
thy with  one  of  the  parties  which  he  says  had  become  national. 
It  was  calculated  to  excite  and  to  influence  the  Secretary  of  State 
not  only  by  the  effect  to  be  produced  in  the  island  of  Cuba,  but 
perhaps  also  by  a regard  to  certain  interests  nearer  home.  But 
was  that  JUSTICE  ? Was  that  a ground  on  which  courts  of  jus- 
tice will  decide  cases'!  I trust  not. 

There  are  a few  portions  of  this  letter,  which  I had  rather  your 
Honors  would  read  when  you  are  together  in  consultation,  than  to 
read  them  myself  in  this  place.  I^will  not  trust  myself  to  com- 
ment upon  them  as  they  deserve.  I trust  that  your  Honors,  in  the 
pursuit  of  JUSTICE,  will  read  them,  as  the  document  will  be  in 
your  hands,  and  you  will  see  why  I abstain  from  doing  it.  Mr. 
Calderon  proceeds  to  say, 

“ If,  on  the  other  hand,  they  should  be  condemned  by  the  in- 
competent tribunal  that  has  taken  upon  itself  to  try  them  as  pi- 
rates and  assassins,  the  infliction  of  capital  punishment  in  this  case 
would  not  be  attended  with  the  salutary  effects  had  in  view  by  the 
law  when  it  resorts  to  this  painful  and  terrible  alternative,  name- 
ly, to  prevent  the  commission  of  similiar  offences.  In  such  case, 
the  indemnification  I officially  ask  for  the  owners  would  be  a very 
slender  compensation ; for,  if  the  property  remained  unimpaired, 
as  it  would  remain,  the  satisfaction  due  to  the  public  would  not 
be  accorded.” 

And  that  is  a reason  why  the  President  of  the  United  States 


25 


was  to  issue  his  leitre  de  cachet , and  send  these  unfortunate  indi- 
viduals to  Cuba.  I abstain  now  from  reading  the  subsequent  pas- 
sages.* He  concludes  by  saying, 

“ In  the  islands  above  mentioned  the  citizens  of  the  United 
States  have  always  met  with  a favorable  reception  and  kind  treat- 
ment. The  Spanish  Government,  for  the  protection  of  their  pro- 
perty, would  immediately  accord  the  extradition  of  any  slaves  that 
might  take  refuge  there  from  the  southern  states.  Being  itself 
exact  in  the  observance  of  treaties,  it  claims  the  more  justly  the 
execution  of  them,  and  a reciprocal  good  correspondence,  from  a 
nation,  the  ally  and  neighbor  of  Spain,  to  whom  so  many  proofs 
have  been  afforded  of  the  high  degree  in  which  her  friendship  is 
esteemed.” 

They  will  readily  yield  fugitive  slaves ! Was  this  an  argument, 
I ask  the  honorable  Court,  to  be  addressed  to  the  Secretary  of 
State  1 Is  it  upon  these  principles  that  cases  are  to  be  decided  ? 
Is  it  by  these  considerations  that  the  action  of  governments  is  to 
be  determined  1 Shall  these  men  be  given  up  on  the  offer  of  an 
equivalent  1 “ If  you  will  deliver  these  Africans  to  me,  for  whose 

* Mr.  Adams’  forbearance  will  hardly  be  appreciated  unless  it  is  known  what 
it  was  that  he  omitted  to  read.  That  portion  of  the  letter  of  Mr.  Calderon  is 
therefore  appended  to  this  note. 

“ The  dread  of  a repetition  of  these  acts  might  be  expected  to  take  possession  of 
the  minds  of  the  people  residing  in  the  islands  of  Cuba  and  Porto-Rico  ; and,  in 
lieu  of  the  harmony  and  good  feeling  subsisting  between  them  and  the  citizens  of 
the  United  States,  it  would  not  be  surprising,  nor  would  it  afford  a cause  for  com- 
plaint, if  sentiments  were  awakened  of  a different  nature,  and  highly  prejudicial  to 
the  interests  of  both  parties.  How  can  the  man  who  promotes  or  advocates  dis- 
•cord  in  families  expect  to  be  regarded  with  benevolence  ? or  how  can  he  who  acts 
in  such  a manner  pret  end  to  the  title  of  friend  ? 

“ The  undersigned  does  not  apprehend  that  the  fears  herein  expressed  by  him  will 
be  deemed  exaggerated  or  unfounded.  No  one  is  ignorant  of  the  existence  of  a 
considerable  number  of  persons  who,  prompted  by  a zeal  which  it  does  not  belong 
to  him  to  qualify,  are  employing  all  the  means  which  knowledge  and  wealth  can 
afford  for  effecting,  at  any  price,  the  emancipation  of  the  slaves.  Many  of  them, 
cither  because  they  are  persuaded  of  the  philanthropy  of  their  designs,  or  assuming 
this  virtue  as  a cloak,  have  no  hesitation  in  repaying  the  hospitality  they  receive 
by  the  seduction  of  the  slaves  of  their  host,  especially  if  they  are  skilful  in  any 
trade. 

u Having'induced  them  to  abandon  their  masters,  they  ship  them  onboard  some 
vessel,  where  they  retain  them  in  a worse  state  of  captivity  than  before,  or  send 
them  to  the  United  States  to  beset  at  liberty;  thus  appropriating  to  themselves  the 
property  of  another,  and  deliberately  committing  a theft,  while,  perhaps,  they  be- 

4 


28 


Very  well — it  amounts  to  this : that  the  Executive  did  not 
choose  to  hold  itself  responsible  for  that  construction  of  the  act  of 
Congress.  This  appears  from  the  appeal.  What  have  the  United 
States  appealed  from  ? Why,  from  a decree  of  the  court,  giving 
them  precisely  what  they  had  claimed  by  the  District  Attorney- 
The  Attorney  knew  that  the  libel  grounded  on  the  demand  of  the 
Spanish  minister,  (ostensibly,  for  I have  shown  that  it  was  a falsi- 
fication of  the  terms  of  that  demand  by  the  Secretary  of  State,) 
was  not  sufficient  to  place  the  Africans  beyond  the  control  of  the 
Executive,  in  a certain  alternative,  and  therefore  he  calls  upon  the 
Court  to  put  them  in  the  hands  of  the  President,  to  be  sent  to  Afri. 
ca — that  is,  to  complete  their  own  voyage. 

Well,  the  District  Court  investigated  the  case,  and  dissipated 
entirely  the  pretension  that  these  Africans  could  be  claimed  in 
any  way  as  merchandise.  They  went  the  length  of  declaring  that 
the  only  ladino  on  board,  the  boy  Antonio,  concerning  whom  there 
was  the  slightest  pretext  of  a claim  that  he  was  a slave,  should  be 
delivered  up  to  the  Spanish  consul,  on  behalf  of  the  representatives 
of  his  late  owner,  Captain  Ferrer.  The  United  States  do  not  ap„ 
peal  from  that  decision,  and  there  has  been  no  appeal,  although 
we  might  have  appealed  with  propriety.  And  I confess  that,  had 
I been  of  counsel  in  that  stage  of  the  proceedings,  I should  have 
been  much  disposed  to  appeal,  on  the  ground  that  there  was  no 
article  of  the  treaty  which  has  any  thing  to  do  with  the  case.  I 
conceive  that  this  part  of  the  decree  of  the  District  Court  is  not 
warranted  by  any  law  or  treaty  whatever* 

But  1 do  not  desire  to  argue  that  question  now,  for  I perceive 
that  the  district  judge,  in  giving  his  decision,  places  it  partly  on 
the  ground  that  the  boy  is  desirous  of  returning.  And  as  volenti 
non  fit  injuria , I reconcile  my  mind  to  that  part  of  the  decision^ 
for  we  could  certainly  have  no  possible  motive  to  interfere  with 
the  wishes  of  the  boy.  If  he  really  has  the  desire  to  return  to 
slavery  in  Cuba,  it  would  be  far  from  my  desire  to  interfere  with 
his  wishes,  however  strange  and  unnatural  I might  deem  them  to 
be.  But  I must,  at  the  same  time,  as  an  individual,  protest  against 
his  delivery  by  any  compulsion,  or  on  any  ground  of  obligation  in 
the  treaty  ; for  I must  maintain,  that  there  is  no  one  of  the  articles 
in  the  treaty  cited  that  has  any  application  whatever  to  the  case. 

And  now,  may  it  please  your  Honors,  so  strange  and  singular  is 
every  thing  that  happens,  connected  with  this  most  singular  case, 


29 


I am  informed  that,  after  all,  this  boy  has  not  been  sent  to  Cuba, 
notwithstanding  his  anxiety  to  go,  and  the  desire  of  the  Spanish 
consul  for  his  restoration,  with  a decree  of  the  Court  agreeable  to 
his  demand.  I am  informed  that  he  has  remained  a whole  year  in 
prison  with  the  Africans,  and  is,  at  this  moment,  in  the  custody  of 
the  marshal,  by  what  warrant  or  process  I know  not,  or  at  whose 
expense. 

The  reason  for  this  extended  analysis  of  the  demand  by  the 
Spanish  minister  is,  that  we  may  be  prepared  to  inquire  what  an- 
swer he  ought  to  have  received  from  the  American  Secretary.  I 
aver,  that  it  was  the  duty  of  the  Secretary  of  State  instantly  to 
answer  the  letter,  by  showing  the  Spanish  minister  that  all  his  de- 
mands were  utterly  inadmissible,  and  that  the  government  of  the 
United  States  could  do  nothing  of  what  he  required.  It  could  not 
deliver  the  ship  to  the  owner,  and  there  tvas  no  duty  resting  on 
the  United  States  to  dispose  of  the  vessel  in  any  such  manner. 
And  as  to  the  demand  that  no  salvage  should  be  taken,  the  Span- 
ish minister  should  have  been  told  that  it  was  a question  depend- 
ing exclusively  on  the  determination  of  the  courts,  before  whom 
the  case  was  pending  for  trial  according  to  law.  And  the  Secre- 
tary ought  to  have  shown  Mr.  Calderon,  that  the  demand  for  a 
proclamation  by  the  President  of  the  United  States,  against  the 
jurisdiction  of  the  courts,  was  not  only  inadmissible  but  offensive'? 
— it  was  demanding  what  the  Executive  could  not  do,  by  the  con- 
stitution. \It  tvould  be  the  assumption  of  a control  over  the  judi- 
ciary by  the  President,  which  would  overthrow  the  whole  fabric 
of  the  constitution  ; it  would  violate  the  principles  of  our  govern- 
ment generally  and  in  every  particular  ; it  would  be  against  the 
rights  of  the  negroes,  of  the  citizens,  and  of  the  States. 

The  Secretary  ought  to  have  done  this  at  once,  without  waiting 
to  consult  the  President,  wmo  was  then  absent  from  the  city.  The 
claim  that  the  negroes  should  be  delivered  was  equally  inadmissi- 
ble with  the  rest ; the  President  has  no  power  to  arrest  either  citi- 
zens or  foreigners.  But  even  that  power  is  almost  insignificant 
compared  with  that  of  sending  men  beyond  seas  to  deliver  them 
up  to  a foreign  government.  The  Secretary  should  have  called 
upon  the  Spanish  ambassador  to  name  an  instance  where  such  a 
demand  had  been  made  by  any  government  of  another  government 
that  wras  independent.  He  should  have  told  him,  that  such  a de- 
mand was  treating  the  President  of  the  United  States,  not  as  the 


30 


head  of  a nation,  but  as  a constable,  a catchpole — a character  that 
it  is  not  possible  to  express  in  gentlemanly  language.  That  is 
what  this  demand  makes  of  the  President  of  the  United  States. 

The  Secretary  should  also  have  set  the  Spanish  Minister  right 
with  regard  to  the  authorities  before  whom  the  question  was  pen- 
ding. He  should  have  told  him  that  they  were  not  the 
authorities  of  the  state  of  Connecticut  but  of  the  United  States, 
the  courts  of  the  Union  in  the  state  of  Connecticut.  He  should 
have  corrected  this  mistake  of  the  minister  at  the  beginning:.  It 
was  a real  misapprehension,  which  has  continued  through  the 
whole  proceeding  to  the  present  time,  and  it  ought  to  have  been 
corrected  at  first.  And  what  is  still  more  remarkable,  the  same 
mistake  of  calling  it  the  court  of  Connecticut  was  made  by  Mr. 
Forsyth  himself  long  after. 

But  what  did  the  Secretary  do  in  fact  ? He  barely  replies  to 
Mr.  Calderon,  that  he  had  sent  his  letter  to  the  President  for  his 
consideration,  and  that  “no  time  will  be  needlessly  lost,  after  his 
decision  upon  the  demand  it  prefers  shall  have  reached  me,  in 
communicating  to  you  his  views  upon  the  subject.” 

And  now,  from  that  day  to  this,  the  Secretary  of  State  has 
never  answered  one  of  these  demands,  nor  arrested  one  of  these 
misapprehensions,  nor  asserted  the  rights  and  the  honor  of  the 
nation  aginst  one  of  these  most  extraordinary,  inadmissible,  and 
insolent  demands.  He  has  degraded  the  country,  in  the  face  of 
the  whole  civilized  world,  not  only  by  allowing  these  demands  to 
remain  unanswered,  but  by  proceeding,  I am  obliged  to  say, 
throughout  the  whole  transaction,  as  if  the  Executive  were 
earnestly  desirous  to  comply  with  every  one  of  the  demands.  In 
the  very  misrepresentations  of  those  demands,  in  his  instructions 
to  the  District  Attorney,  under  which  this  case  is  brought  here, 
why  does  he  take  such>a  course?  The  Spanish  Minister  pro- 
nounced the  Court  before  which  the  Secretary  brought  the  ques- 
tion, an  incompetent  tribunal — and  this  position  has  been  main- 
tained by  the  Legation  of  Spain  down  to  this  very  month,  that  a 
letter  of  Chevalier  d’Argaiz  officially  protests  against  the  jurisdic- 
tion  of  the  courts  before  which  the  Secretary  professes  to  be 
prosecuting  the  claim  of  this  very  minister  ! 

Why  does  the  Spanish  Minister  persist  in  such  inadmissible 
pretensions  ? It  is  because  they  were  not  met  in  limine  in  a 
proper  manner — because  he  was  not  told  instantly,  without  the 


31 


delay  of  an  hour,  that  this  Government  could  never  admit  such 
claims,  and  would  be  offended  if  they  were  repeated,  or  any  por- 
tion of  them.  Yet  all  these  claims,  monstrous,  absurd  and  inad- 
missible as  they  are,  have  been  urged  and  repeated  for  eighteen 
months,  upon  our  Government,  and  an  American  Secretary  of 
State  evades  answering  any  of  them — evades  it  to  such  an 
extent  that  the  Spanish  Minister  reproaches  him  for  not  meeting 
his  arguments. 

The  demand  of  Mr.  Calderon  was  dated  September  6.  The 
order  of  the  Secretary  to  the  District  Attorney,  in  regard  to  the 
suit,  was  dated  September  11,  in  which  he  says  that  “ a commu- 
nication has  been  addressed  to  this  department  by  the  Minister  of 
Her  Catholic  Majesty,  claiming  the  vessel,  cargo,  and  blacks  on 
board,  as  Spanish  property,  and  demanding  its  immediate  release.” 
On  the  23d  of  September,  the  Secretary  writes  to  the  Spanish 
Minister  as  follows : 

Sir  : In  the  examination  of  the  case  of  the  Spanish  schooner 
“Amistad,”  the  only  evidence  at  present  within  reach  of  this 
department  is  that  presented  by  the  ship’s  paper  5 and  the  pro 
ceedings  of  the  court  of  inquiry  held  by  a district  judge  of  Con- 
necticut, on  board  the  schooner,  at  the  time  the  negroes  in  whose 
possession  she  was  found,  were  imprisoned  for  the  alledged  mur- 
der of  the  captain  and  mate  of  the  vessel.  If  you  have  any  other 
authentic  documents  relating  to  the  question  or  evidence  of  facts 
which  can  be  useful  to  a proper  understanding  of  it,  I have  the 
honor  to  request  by  the  direction  of  the  President,^  that  you  will 
communicate  them  to  me  with  as  little  delay  as  practicable. 

Here  the  Secretary  reiterates  the  error  of  the  Spanish  minister, 
instead  of  correcting  it,  with  regard  to  the  character  of  the  Court 
before  which  the  case  was  pending.  The  Secretary  of  State  calls 
the  United  States  District  for  Connecticut  “ a District  Court  of 
Connecticut.”  The  Spanish  Minister  could  not  be  expected  to 
acquire  a correct  understanding  of  the  case,  unless  he  was  in- 
formed. but  here  he  has  his  error  confirmed. 

The  Secretary  further  requests  the  ambassador,  if  he  has  any 
farther  documents,  “that  you  will  communicate  them  to  me.” 
What  had  he  to  do  with  this  evidence?  The  Spanish  minister 
had  made  a certain  demand  upon  the  government  of  the  United 
States.  Whether  it  was  what  it  appears  to  be,  or  whether  it  was 
what  the  Secretary  represented  it  to  be  in  his  orders  to  the  Dis- 


32 


trict  Attorney,  it  was  no  part  of  the  business  of  the  American 
Secretary  of  State  to  look  after  the  evidence.  Still,  if  he  had 
requested  the  minister  to  communicate  the  evidence  to  the  Court, 
it  might  not  have  been  exactly  improper,  but  only  officious.  If 
the  Spanish  Minister  chose  to  go  into  our  courts  in  support  of  the 
private  claims  of  Spanish  subjects,  he  could  do  it,  and  it  was  his 
business  to  bring  forward  the  proper  evidence  in  support  of  his 
claim.  Why,  then,  does  the  Secretary  call  upon  him  to  furnish 
these  documents  to  the  Executive  Department  I Your  Honors 
will  judge  whether  this  letter  is  or  is  not  evidence  of  a deter* 
mination  then  existing  on  the  part  of  the  Executive,  to  decide  this 
case  independently  of  the  judiciary,  and  ex  parte. 

Mr.  Calderon  replies  that  he  has  no  other  evidence  to  furnish. 
The  next  document  is  the  letter  of  his  successor,  the  Chevalier 
d’Argaiz  : 

New-York,  October  3,  1839. 

The  undersigned,  envoy  extraordinary  and  minister  plenipoten- 
tiary  of  Her  Catholic  Majesty,  has  the  honor  of  commencing  his 
official  correspondence  with  you,  sir,  by  soliciting  an  act  of  jus- 
tice, which,  not  being  in  any  way  connected  with  the  principal 
question  as  yet  remaining  unsettled  by  the  cabinet,  relative  to  the 
negroes  found  on  board  the  schooner  Amistad  on  her  arrival  on 
these  coasts,  he  does  not  doubt  will  be  received  by  you  in  the 
manner  which  he  has  every  reason  to  expect,  from  the  circum- 
stance that  all  preceding  acts  of  the  department  under  your 
charge  have  been  dictated  by  the  principles  of  rectitude  and 
reciprocity. 

Her  Majesty’s  vice-consul  at  Boston,  under  date  of  the  24th  of 
September  last,  says,  among  other  things  : 

“As  it  appears  from  the  papers  of  the  schooner  that  she,  as  well 
as  her  cargo,  are  exclusively  Spanish  property,  it  seems  strange 
that  the  Court  of  New  London  has  not  yet  ordered  the  delivery 
of  one  or  both  to  the  owners,  if  they  are  present,  or  to  me,  as 
their  agent,  born  in  that  part  of  the  Union” — [This  is  a mis-trans- 
lation  ; it  means  the  official  agent  in  that  part  of  the  Union] — 
“ agreeably  to  the  articles  of  the  treaty  now  in  force  between 
the  two  countries.  The  delay  in  the  delivery  would  not  be  of  so 
much  consequence  to  the  proprietors  if  the  vessel  did  not  require 
immediate  repairs,  in  order  to  preserve  her  from  complete 
destruction,  and  if  it  were  not  material  that  a large  part  of  the 
cargo  should  be  sold  on  account  of  its  bad  condition. 


33 


Here  we  see  the  same  unfortunate  misapprehension  continued. 
The  new  Spanish  minister  calls  upon  the  Secretary  of  State  to  put 
the  “ Court  of  New  London”  into  speedy  action,  to  lessen  the 
danger  of  loss  to  the  proprietors  by  delay,  and  the  Secretary  of 
State  takes  no  pains  to  correct  the  error. 

On  the  2-ith  of  October,  the  Secretary  of  State  wrote  again  to 
Mr.  Argaiz,  on  another  subject,  which  is  not  now  before  this 
Court, — the  arrest  of  Ruiz  and  Montes,  at  the  suit  of  some  of  the 
Africans,  in  the  courts  of  the  State  of  New  York.  Mr.  Argaiz 
protested  against  the  arrest,  and  claims  “the  interposition  of  the 
Executive  in  procuring  their  liberation,  and  indemnity  for  the 
losses  and  injury  they  may  have  sustained.”  To  that  the  Secre- 
tary replies: 

“ It  appears  from  the  documents  accompanying  the  note  of  the 
Chevalier  d’Argaiz,  that  the  two  Spanish  subjects  referred  to 
were  arrested  on  process  issuing  from  the  Superior  Court  of  the 
city  of  New  York,  at  the  suit  of,  and  upon  affidavits  made  by  cer- 
tain colored  men,  natives  of  Africa,  for  the  purpose  of  securing 
their  appearance  before  the  proper  tribunal,  to  answer  for  wrongs 
alledged  to  have  been  inflicted  by  them  upon  the  persons  of  the 
said  Africans  ; and,  consequently,  that  the  occurrence  constitutes 
a simple  case  of  resort  by  individuals  against  others  to  the  judi- 
cial courts  of  the  country,  which  are  equally  open  to  all  without 
distinction,  and  to  which  it  belongs  exclusively  to  decide,  as  well 
upon  the  right  of  the  complainant  to  demand  the  interposition  of 
their  authority,  as  upon  the  liability  of  the  defendant  to  give  re- 
dress for  the  wrong  alledged  to  have  been  committed  by  him.  This 
being  the  only  light  in  which  the  subject  can  be  viewed,  and  the 
constitution  and  laws  having  secured  the  judicial  power  against 
all  interference  on  the  part  of  the  Executive  authority,  the  Pre- 
sident, to  whom  the  Chevalier  d’Argaiz’s  note  has  been  commu- 
nicated, has  instructed  the  undersigned  to  state,  that  the  agency 
of  this  government  to  obtain  the  release  of  Messrs.  Ruiz  and  Mon- 
tes cannot  be  afforded  in  the  manner  requested  by  him.  The  laws 
of  the  state  of  New  York,  of  which  the  constitution  and  laws  of 
the  United  States  and  their  treaties  with  foreign  powers  form  a 
part,  afford  to  Messrs.  Ruiz  and  Montes  all  the  necessary  means 
to  procure  their  release  from  imprisonment,  and  to  obtain  any  in- 
demnity to  which  they  maybe  justly  entitled,  and  therefore  would 
render  unnecessary  any  agency  on  the  part  of  this  department  for 
those  purposes.” 


5 


There  is  a complete  answer  to  all  these  demands  of  the  Spanish 
legation.  “The  constituiion  and  laws  have  secured  the  judicial 
power  against  ALL  interference  of  the  Executive  authority.” 
That  is  very  true.  The  laws  of  the  state  of  New  York,  of  which 
the  constitution  and  laws  of  the  United  States  and  their  treaties 
with  foreign  powers  form  a part,  afford  to  Messrs.  Ruiz  and  Mon- 
tes all  the  necessary  means  for  the  security  of  their  rights,  and 
therefore  “ render  unnecessary  any  agency  on  the  part  of”  the 
Executive.  That  is.  very  correct.  There  is  a perfect  answer, 
worthy  of  an  American  statesman  But  is  that  alU  No.  The 
Secretary  finds,  after  all  these  disclaimers,  one  Executive  power 
yet  in  reserve,  which  may  be  put  forth  to  take  part  against  poor 
Africans,  and  at  least  afford1  evidence  of  the  national  sympathy. 
The  Secretary  says: 

“ But  inasmuch  as  the  imprisonment  of  those  persons  connects 
itself  with  another  occurrence  which  has  been  brought  under  the 
President’s  consideration,  in  consequence  of  a correspondence  be- 
tween the  Spanish  legation  and  this  department,  instructions  (of 
which  a copy  is  inclosed)  have  been  given  to  the  Attorney  of  the 
United  States  for  the  District  of  New  York  to  put  himself  in  com- 
munication with  those  gentlemen,  to  offer  them  his  advice  (and 
his  aid,  if  necessary)  as  to  any  measure  which  it  may  be  pro- 
per for  them  to  adopt  to  procure  their  release,  and  such  indemnity 
as  may  be  due  to  them,  under  our  laws,  for  their  arrest  and  deten- 
tion.” 

Because  the  case  “ connects  itself  with  another  occurrence.” 
What  is  all  this  1 The  independence  of  the  judiciary  is  first 
firmly  and  bravely  sustained.  It  is  a question  of  private  rights 
between  parties,  with  which  the  executive  has  nothing  to  do,  and 
the  Government  of  the  United  States  has  no  power  to  interpose. 
And  then  the  President  instructs  the  District  Attorney,  the  law 
officer  of  the  government,  to  “put  himself  in  communication” 
with  one  of  the  parties,  to  throw  all  the  weight  and  influence  of 
the  government  on  their  side,  in  order  to  secure  a favorable  deci- 
sion for  them  in  the  Courts  of  the  state  of  New  York.  May  it 
please  your  Honors,  I will  not  here  enter  into  an  inquiry  of  the  ef- 
fect of  this  interference  of  the  Executive  of  the  United  States 
with  the  Courts  of  a State,  or  the  extent  and  operation  of  the 
principle  which  would  authorize  such  interference.  I really  do 
not  know,  my  imagination  cannot  present  to  me  the  compass  of 


35 


its  effects  on  the  rights  of  the  people  of  the  United  States.  1 
again  ask  the  attention  of  this  honorable  court  to  this  subject. 
The  letter  begins  with  a declaration  of  the  independence  of  the 
judiciary  of  the  State  of  New  York,  the  sufficiency  of  the  laws 
to  secure  justice  and  the  incompetency  of  the  Executive  to  inter- 
fere ; and  yet,  because  the  case  “ connects  itself”  with  another 
case  in  which  the  Executive  has  considered  itself  entitled  to  act, 
the  whole  influence  of  the  Government  is  brought  to  bear  upon 
the  judicial  authorities  of  the  State  of  New  York. 

I said  the  Secretary  of  State  had  never  to  this  hour  undertaken 
to  contest  any  one  of  the  actual  demands  of  Mr.  Calderon,  as 
preferred  in  his  letter  of  5th  September.  Pie  had  suffered  both 
Mr.  Calderon  and  his  successor  to  remain  under  the  impression 
that  if  their  demands  were  not  complied  with,  for  the  kidnapping 
of  these  people  by  the  Executive,  it  was  not  for  the  want  of  a will 
to  do  it,  or  of  a disposition  to  contest  the  claims  put  forth  in  so 
extraordinary  a manner  upon  our  government.  Let  us  now  see 
how  Mr.  Argaiz  himself  regarded  the  conduct  of  the  Secretary. 
On  the  5th  of  November,  he  writes  again  to  Mr.  Forsyth,  acknow- 
ledging the  receipt  of  Mr.  Forsyth’s  letter,  inclosing  the  instruc- 
tions of  the  Attorney  of  the  United  States  for  the  District  of  New 
York,  “ that  he  should  offer  to  these  persons  his  advice  and  as- 
sistance, if  needed,  with  regard  to  the  most  proper  means  of  ob- 
taining their  liberty.”  He  says  : 

“ Although  this  answer  did  not  entirely  satisfy  the  desire  ex- 
pressed by  the  undersigned  in  the  note  of  October  22d,  to  which 
he  was  impelled  by  the  sense  of  his  duty,  and  by  the  terms  of  ex- 
isting treaties,  yet  he  received  it  with  pleasure  and  with  thanks ; 
with  pleasure,  because  he  saw  that  the  Secretary  of  State  did 
not  refuse  to  admit  the  reasons  which  the  undersigned  had  the 
honor  to  state  in  that  note  5 and  with  thanks,  because  he  saw  that 
the  sentiments  which  had  urged  him  to  request  whth  warmth  a 
prompt  reply,  had  been  kindly  interpreted.  The  undersigned  in 
consequence,  went  immediately  to  New  York,  where  he  visited, 
on  the  29ih  ultimo,  the  Attorney  of  the  United  States,  with  whom 
he  had  a long  conversation,  whieh  left  him  delighted  with  the  af- 
fability and  courtesy  of  Mr.  Butler,  although  he  did  not  have  the 
happiness  to  remain  satisfied  as  to  the  principal  matter,  as  that 
officer  of  justice  declared  that  he  could  find  no  other  means  of 
obtaining  the  liberty  of  B.uiz  (Montes  being  already  free)  than  by 


36 


waiting  the  determination  of  the  court  or  courts,  against  the  juris- 
diction of  which  the  undersigned  had  already  especially  pro- 
tested.” 

The  Spanish  ambassador  was  not  satisfied  with  the  letter,  an^ 
and  yet  he  received  it  with  pleasure,  “ because  he  saw  that  the 
Secretary  did  not  refuse  to  admit  his  reasons.”  How  is  that? 
The  Secretary  of  State  took  no  measures  to  repel  the  improper 
demand  made,  or  to  correct  the  erroneous  idea  cherished  by  the 
Spanish  legation  ; and  this  neglect  Mr.  Argaiz  construes  as  a vir- 
tual admission  of  his  “ reasons.”  Why  should  he  not  so  construe 
it  ? Here  is  also  a renewal  of  the  protest,  which  has  uniformly 
been  maintained  by  the  legation,  against  the  right  of  any  court  in 
this  country  to  exercise  jurisdiction  in  the  case.  And  yet 
this  suit  is  carried  on  by  the  Executive,  as  in  pursuance  of  a de- 
mand by  the  Spanish  minister.  Mr.  Argaiz  then  refers  to  two 
personal  conferences  which  he  had  with  the  Secretary,  and  he  is 
well  persuaded  that  what  he  had  said,  together  with  the  indications 
in  his  note  of  October  22,  would  have  been  sufficient  to  convince 
“ one  so  enlightened  arid  discriminating  as  the  Secretary,  of  the 
justice  of  his  claim  ; that  this  persuasion  has  gained  strength, 
from  the  circumstance  that  the  Secretary  of  State  has  made  no 
attempt  in  his  answer  to  oppose  those  arguments,  but  has  confined 
himself  to  endeavoring  to  explain  the  course  of  civil  causes  in  the 
courts  of  this  country,  in  order  to  show  that  the  government  of 
the  United  States  could  not  interfere  in  the  manner  which  her 
Catholic  Majesty’s  representative  requested;  it  becomes  necessary 
to  advance  farther  arguments , at  the  risk  of  being  importunate.” 

And  a little  farther  on,  after  adverting  to  the  various  excuses 
and  palliations  which  seem  to  have  been  presented  in  these  con- 
fidential conferences,  for  not  seizing  these  negroes  and  sending 
them  to  Cuba  by  the  Executive  power,  in  which  he  says  “ it  is 
allowed  by  the  whole  world”  that  “ petitions  or  accusations  of 
slaves  against  their  masters  cannot  be  admitted  in  a court,”  he 
concludes  by  asking— 

“ As  the  incompetence  of  the  courts  of  the  United  States,  with 
regard  to  this  matter,  is  so  clearly  demonstrated,  is  there  no 
power  in  the  Federal  Government  to  declare  it  so,  and  to  inter- 
pose its  authority/to  put  down  the  irregularity  of  these  proceed- 
ings, which  the  court  is  not  competent  to  perform  1 It  seems  im- 
possible that  there  should  be  no  such  power  ; but  unfortunately 
there  is  none. 


37 


“Her  Catholic  Majesty’s  envoy  extraordinary  and  minister 
plenipotentiary,  nevertheless,  seeing  that  his  previous  protest  did 
not  produce  the  result  which  he  expected,  renews  it  now,  declar- 
ing this  government  responsible  for  the  consequences  which  may 
grow  out  of  this  affair  ; and  he  asks  the  Secretary  of  State  whe- 
ther or  not  he  possesses  sufficient  authority  and  force  to  carry 
into  fulfilment  the  treaty  of  1795.  If  he  has  not,  then  there  can 
be  no  treaty  binding  on  the  other  party.” 

He  thinks  it  impossible  there  should  not  be  a power  in  the  Fe- 
deral Government  to  put  down  these  proceedings  of  the  courts, 
but  he  admits  that  unfortunately  there  is  no  such  power,  and  then 
asks  the  Secretary  of  State  if  he  cannot  find  a power , somewhere, 
to  take  the  matter  out  of  the  hands  of  the  judiciary  altogether. 
And  if  not,  he  shall  hold  this  Government  responsible  for  the  con- 
sequences, for  if  it  has  not  power  to  fulfil  the  treaty,  no  treaty  is 
binding  on  either  party. 

On  the  26th  of  November,  the  trial  of  the  case  having  been 
postponed  by  the  District  Court  from  November  to  January,  he 
writes  again,  that  he  is  under  the  necessity  of  renewing  his  for- 
mer complaints. 

“To  the  first  complaint,  made  by  his  predecessor,  on  the  6th 
September  last,  nothing  more  than  an  acknowledgment  of  its  re- 
ceipt was  thought  necessary,  which  was  made  on  the  1 6th  of  the 
same  month.  In  the  answers  which  the  Secretary  was  pleased  to 
give  to  the  notes  of  the  undersigned,  of  the  22d  of  October,  and 
the  5th  of  November  last,  that  gentleman  did  not  think  proper 
to  combat  the  arguments  advanced.  Those  which  the  undersigned 
now  proposes  to  present  will  be  no  less  powerful,  and  he  hopes 
will  be  such  that  the  Secretary  will  not  be  able  to  deny  their 
justice. 

“ The  undersigned  has  the  honor  to  ask  in  what  lawT,  act,  or 
statute,  does  the  said  court  base  its  right  to  take  cognizance  of 
the  present  easel  There  can  be  no  doubt  as  to  the  reply  : on  no 
law,  act,  or  statute.” 

Here  he  denies  again  that  the  Court,  before  which  the  Secreta- 
ry of  State  had  made  a demand  with  the  averment  that  it  came 
from  the  Spanish  minister,  has  any  power  to  take  cognizance  of 
the  case.  He  says  there  is  no  law,  act,  or  statute  for  it,  and  then 
he  goes  on  : — 

“ For,  if  any  such  existed,  it  is,  or  should  be,  anterior  or  poste- 


36 


waiting  the  determination  of  the  court  or  courts,  against  the  juris- 
diction of  which  the  undersigned  had  already  especially  pro- 
tested.” 

The  Spanish  ambassador  was  not  satisfied  with  the  letter,  and 
and  yet  he  received  it  with  pleasure,  “ because  he  saw  that  the 
Secretary  did  not  refuse  to  admit  his  reasons.”  How  is  that  ? 
The  Secretary  of  State  took  no  measures  to  repel  the  improper 
demand  made,  or  to  correct  the  erroneous  idea  cherished  by  the 
Spanish  legation  ; and  this  neglect  Mr.  Argaiz  construes  as  a vir- 
tual admission  of  his  “ reasons.”  Why  should  he  not  so  construe 
it  1 Here  is  also  a renewal  of  the  protest,  which  has  uniformly 
been  maintained  by  the  legation,  against  the  right  of  any  court  in 
this  country  to  exercise  jurisdiction  in  the  case.  And  yet 
this  suit  is  carried  on  by  the  Executive,  as  in  pursuance  of  a de- 
mand by  the  Spanish  minister.  Mr.  Argaiz  then  refers  to  two 
personal  conferences  which  he  had  with  the  Secretary,  and  he  is 
well  persuaded  that  w’hat  he  had  said,  together  with  the  indications 
in  his  note  of  October  22,  would  have  been  sufficient  to  convince 
“ one  so  enlightened  arid  discriminating  as  the  Secretary,  of  the 
justice  of  his  claim  ; that  this  persuasion  has  gained  strength, 
from  the  circumstance  that  the  Secretary  of  State  has  made  no 
attempt  in  his  answer  to  oppose  those  arguments , but  has  confined 
himself  to  endeavoring  to  explain  the  course  of  civil  causes  in  the 
courts  of  this  country,  in  order  to  show  that  the  government  of 
the  United  States  could  not  interfere  in  the  manner  which  her 
Catholic  Majesty’s  representative  requested;  it  becomes  necessary 
to  advance  farther  arguments , at  the  risk  of  being  importunate.” 

And  a little  farther  on,  after  adverting  to  the  various  excuses 
and  palliations  which  seem  to  have  been  presented  in  these  con- 
fidential conferences,  for  not  seizing  these  negroes  and  sending 
them  to  Cuba  by  the  Executive  power,  in  which  he  says  “ it  is 
allowed  by  the  whole  world”  that  “ petitions  or  accusations  of 
slaves  against  their  masters  cannot  be  admitted  in  a court,”  he 
concludes  by  asking — 

“ As  the  incompetence  of  the  courts  of  the  United  States,  with 
regard  to  this  matter,  is  so  clearly  demonstrated,  is  there  no 
power  in  the  Federal  Government  to  declare  it  so,  and  to  inter- 
pose its  authority  to  put  down  the  irregularity  of  these  proceed- 
ings, which  the  court  is  not  competent  to  perform  1 It  seems  im- 
possible that  there  should  be  no  such  power  ; but  unfortunately 
there  is  none. 


37 


“Her  Catholic  Majesty’s  envoy  extraordinary  and  minister 
plenipotentiary,  nevertheless,  seeing  that  his  previous  protest  did 
not  produce  the  result  which  he  expected,  renews  it  now,  declar- 
ing this  government  responsible  for  the  consequences  which  may 
grow  out  of  this  affair  ; and  he  asks  the  Secretary  of  State  whe- 
ther or  not  he  possesses  sufficient  authority  and  force  to  carry 
into  fulfilment  the  treaty  of  1795.  If  he  has  not,  then  there  can 
be  no  treaty  binding  on  the  other  party.” 

He  thinks  it  impossible  there  should  not  be  a power  in  the  Fe- 
deral Government  to  put  down  these  proceedings  of  the  courts, 
but  he  admits  that  unfortunately  there  is  no  such  power,  and  then 
asks  the  Secretary  of  State  if  he  cannot  find  a power , somewhere, 
to  take  the  matter  out  of  the  hands  of  the  judiciary  altogether. 
And  if  not,  he  shall  hold  this  Government  responsible  for  the  con- 
sequences, for  if  it  has  not  power  to  fulfil  the  treaty,  no  treaty  is 
binding  on  either  party. 

On  the  26th  of  November,  the  trial  of  the  case  having  been 
postponed  by  the  District  Court  from  November  to  January,  he 
writes  again,  that  he  is  under  the  necessity  of  renewing  his  for- 
mer complaints. 

“ To  the  first  complaint,  made  by  his  predecessor,  on  the  6th 
September  last,  nothing  more  than  an  acknowledgment  of  its  re- 
ceipt was  thought  necessary,  which  was  made  on  the  1 6th  of  the 
same  month.  In  the  answers  which  the  Secretary  was  pleased  to 
give  to  the  notes  of  the  undersigned,  of  the  22d  of  October,  and 
the  5th  of  November  last,  that  gentleman  did  not  think  proper 
to  combat  the  arguments  advanced.  Those  which  the  undersigned 
now  proposes  to  present  will  be  no  less  powerful,  and  he  hopes 
will  be  such  that  the  Secretary  will  not  be  able  to  deny  their 
justice. 

“ The  undersigned  has  the  honor  to  ask  in  what  law,  act,  or 
statute,  does  the  said  court  base  its  right  to  take  cognizance  of 
the  present  case  1 There  can  be  no  doubt  as  to  the  reply  : on  no 
lawT,  act,  or  statute.” 

Here  he  denies  again  that  the  Court,  before  which  the  Secreta- 
ry of  State  had  made  a demand  u'ith  the  averment  that  it  came 
from  the  Spanish  minister,  has  any  power  to  take  cognizance  of 
the  case.  He  says  there  is  no  law,  act,  or  statute  for  it,  and  then 
he  goes  on  : — 

“ For,  if  any  such  existed,  it  is,  or  should  be,  anterior  or  poste- 


40 


merchandise,  but  as  men — as  infant  females,  with  flesh,  and  blood, 
and  nerves,  and  sinews,  to  be  tortured,  and  with  lives  to  be  for- 
feited and  consumed  by  fire,  to  appease  the  public  vengeance,  of 
the  lawless  slave-traders  in  Cuba  1 

Mr.  Forsyth,  by  a most  unaccountable  oversight  of  this  distinc- 
tion between  persons  and  things,  misrepresents  this  demand  of 
Mr.  Calderon. 

He  instructs  the  District  Attorney,  Mr.  Holabird,  (11th  Sept., 
1839,  Doc.  p.  39,  40,)  that  the  Spanish  minister  had  addressed 
a communication  to  the  Department  of  State,  claiming  the  vessel, 
cargo,  and  blacks  on  board,  as  Spanish  property,  and  demanding 
its  immediate  release. 

The  District  Attorney,  on  the  19th  of  September,  files,  accord- 
ingly, his  libels,  (Record,  p.  13,)  stating  the  demand  of  the  Span- 
ish minister,  not  as  it  had  really  been  made,  but  according  to  the 
statement  of  it  in  his  instructions  from  the  Department  of  State  ; 
and  he  prays  the  Court  that,  if  the  claim  of  the  Spanish  minister 
is  well  founded  and  conformable  to  treaty,  the  Court  should  make 
such  order  for  the  disposal  of  the  said  vessel,  cargo,  and  slaves, 
as  may  best  enable  the  United  States,  in  all  respects,  to  comply 
with  their  treaty  stipulations,  and  preserve  the  public  faith  invi- 
olate. 

But  if  it  should  be  made  to  appear  that  the  persons  aforesaid, 
described  as  slaves,  arelnegroes  and  persons  of  color,  who  have 
been  transported  from  Africa  iri  violation  of  the  laws  of  the  Unit- 
ed States,  and  brought  into  these  United  States  contrary  to  the 
same  laws,  he  claims  that,  in  such  case,  the  Court  shall  make  such 
further  order  as  may  enable  the  United  States,  if  deemed  expedi- 
ent, to  remove  such  persons  to  the  coast  of  Africa,  to  be  delivered 
there  to  such  agent  or  agents  as  may  be  authorized  to  receive  and 
provide  for  them,  pursuant  to  the  laws  of  the  United  States;  or 
to  make  such  other  order  as  to  the  court  should  seem  fit,  right, 
and  proper  in  the  premises. 

Here  were  three  alternatives  prayed  for — 1st.  That  the  vessel, 
cargo,  and  blacks,  assumed  to  be  slaves,  should  be  so  disposed  of 
as  to  enable  the  United  States  to  comply  with  their  treaty  stipu- 
lations, and  preserve  the  public  faith  inviolate.  It  was  stated  that 
this  demand  was  made  at  the  instance  of  the  Spanish  minister, 
but  that  was  true  only  of  the  vessel  and  cargo,  but  not  of  the  per- 
sons. Of  them,  he  had  demanded,  by  necessary  implication,  that 


41 


they  should  not  be  restored  to  their  pretended  owners,  but  kept 
in  close  custody,  and,  in  defiance  of  all  judicial  authority,  con- 
veyed to  the  Havana  Governmentally,  that  is,  by  the  arbitrary 
mandate  of  the  President  of  the  United  States,  to  satisfy  public 
vengeance.  The  Court  could  not  have  complied  with  this  alter- 
native of  restoring  the  negroes,  as  property,  to  their  owners,  but 
by  denying  and  defying  the  real  demand  of  the  Spanish  minister, 
that  they  should  be  sent  to  Cuba  as  criminals. 

The  second  alternative  was,  that  the  Court  should  enable  the 
United  States  to  send  the  negroes  home  to  Africa,  if  deemed  expe- 
dient; and  to  this  the  decree  of  the  Court  said,  soit  fait  comme  il 
est  desir£ — be  it  as  the  District  Attorney  desires.  Let  the  said 
Africans,  in  the  custody  of  the  Marshal,  be  delivered  to  the  Presi- 
dent of  the  United  States  by  the  Marshal  of  the  District  of  Con- 
necticut, to  be  by  him  transported  to  Africa,  in  pursuance  of  the 
law  of  Congress  passed  March  3,  1829,  entitled  “ An  act  in  addi- 
tion to  the  acts  prohibiting  the  slave-trade.” 

Yet,  from  this  sentence,  claimed  by  the  District  Attorney,  the 
representative  of  the  Executive  Administration  before  the  Court, 
it  is  he  himself  that  appeals.  Should  the  Court  sustain  that  ap- 
peal, what  judgment  could  they  possibly  render  ? Should  they 
reverse  the  decision  of  the  District  and  Circuit  Courts,  they  would 
indeed  determine  that  these  forty  persons  should  not  be  delivered 
to  the  President  of  the  United  States,  to  be  sent  home  to  Africaj 
— but  what  shall  the  Court  decree  to  be  done  with  them  ? Not 
surely,  that  they  should  be  delivered  up  to  their  pretended  own- 
ers, for  against  that  the  Spanish  minister  solemnly  protests  ! He 
demands  not  even  that  they  should  be  delivered  up  to  himself  ! 
He  demands  that  it  should  be  declared , that  no  tribunal  in 
the  United  States  has  the  right  even  to  institute  proceedings 
against  them.  Be  declared — by  whom?  He  demands  of  the  Ex- 
ecutive Administration — (will  the  Court  please  to  consider  what 
the  purport  of  this  demand  is  ?) — that  the  President  of  the  Unit- 
ed States  should  issue  a proclamation,  that  no  tribunal  of  the 
United  States  has  the  right  to  institute  proceedings  against  the 
subjects  of  Spain  for  crimes  committed  on  board  a Spanish  vessel, 
and  in  the  waters  of  the  Spanish  territory. 

When  this  demand  was  made,  the  Africans  of  the  Amistad  were 
in  the  custody  of  a judicial  tribunal  of  the  United  States,  upon 
6 


42 


proceedings  instituted  against  them  as  criminals  charged  with  pi. 
racy  and  murder.  They  were  also  claimed  by  two  Spaniards  as 
merchandise , their  property  ; and  the  faith  of  a treaty  was  solemnly 
invoked  to  sustain  the  claim  that  this  merchandise,  rescued  out  of 
the  hands  of  pirates  or  robbers,  (that  is  to  say,  out  of  the  hands 
of  itself ,)  should  be  taken  care  of  by  the  officers  of  the  port  into 
which  they  had  been  brought,  and  restored  entire  to  them — Ruiz 
and  Montes — as  soon  as  due  and  sufficient  proof  should  be  made 
concerning  the  property  thereof. 

Now,  if  no  tribunal  in  the  United  States  had  the  right  to  insti- 
tute proceedings  against  the  subjects  of  Spain  for  crimes  commit- 
ted on  board  a Spanish  vessel  and  in  the  waters  of  the  Spanish 
territory,  how  could  the  Court  know  that  these  same  Spanish  sub- 
jects were,  at  the  same  time,  the  merchandise  rescued  out  of  the 
hands  of  pirates  and  robbers  and  the  pirates  or  robbers  out  of 
whose  hands  the  merchandise  was  rescued  1 How  could  the 
Court  know  that  they  were  subjects  of  Spain — that  they  were  pi- 
rates or  robbers — or  that  they  were  merchandise — if  the  Court 
had  no  right  to  institute  proceedings  against  them  1 

The  very  phraseology  of  the  9th  article  of  the  treaty  with 
Spain  proves,  that  it  was  not  and  could  not  be  intended  to  include 
persons  under  the  denomination  of  merchandise,  of  what  nature 
soever,  for  it  provides  that  the  merchandise  shall  be  delivered  to 
the  custody  of  the  officers  of  the  port,  in  order  to  be  taken  care 
of  and  restored  entire  to  the  true  proprietor.  Now,  this  provision, 
that  the  merchandise  shall  be  restored  entire,  is  absurd  if  applied 
to  human  beings,  and  the  use  of  the  word  conclusively  proves 
that  the  thought  and  intention  of  the  parties  could  not  be  con- 
strued to  extend  to  human  beings.  A stipulation  to  restore  human 
beings  entire  might  suit  two  nations  of  cannibals,  but  would  be 
absurd,  and  worse  than  absurd,  between  civilized  and  Christian 
nations.  Again,  the  article  provides  that  the  rescued  merchandise 
shall  be  delivered  to  the  custody  of  the  officers  of  the  port  into 
which  it  is  brought,  in  order  to  be  taken  care  of ; but,  by  what 
Constitution  or  law  of  the  United  States,  or  of  Connecticut,  could 
the  officers  of  the  port  of  New  London  receive  into  their  custo- 
dy, and  take  care  of,  the  Africans  of  the  Amistad  1 

The  demand  of  the  Spanish  minister,  Calderon,  was,  that  the 
President  of  the  United  States  should  first  turn  man-robber  ; res- 
cue from  the  custody  of  the  Court,  to  which  they  had  been  com- 


43 


mitted,  those  forty  odd  Africans,  males  and  females,  adults  and 
children  ; next  turn  jailer,  and  keep  them  in  his  close  custody,  to 
prevent  their  evasion  ; and  lastly,  turn  catchpoll  and  convey  them 
to  the  Havana,  to  appease  the  public  vengeance  of  the  African 
slave-traders  of  the  barracoons. 

Is  it  possible  to  speak  of  this  demand  in  language  of  decency 
and  moderation  ? Is  there  a law  of  Habeas  Corpus  in  the  land  ? 
Has  the  expunging  process  of  black  lines  passed  upon  these  two 
Declarations  of  Independence  in  their  gilded  frames?  Has  the 
4th  of  July,  ’76,  become  a day  of  ignominy  and  reproach?  Is 
there  a member  of  this  Honorable  Court  of  age  to  remember  the 
indig-nation  raised  against  a former  President  of  the  United  States 
for  causing  to  be  delivered  up,  according  to  express  treaty  stipu- 
lation, by  regular  judicial  process,  a British  sailor,  for  murder  on 
board  of  a British  frigate  on  the  high  seas?  At  least,  all  your 
Honors  remember  the  case  of  the  Bambers  1 You  all  remember 
your  own  recent  decision  in  the  case  of  Dr.  Holmes  ? And  is  it 
for  this  Court  to  sanction  such  monstrous  usurpation  and  Execu- 
tive tyranny  as  this  at  the  demand  of  a Spanish  minister?  And 
can  you  hear,  with  judicial  calmness  and  composure,  this  demand 
of  despotism,  countenanced  and  supported  by  all  the  Executive 
authorities  of  the  United  States,  though  not  yet  daring  to  carry 
it  into  execution  ? 

The  third  alternative  prayed  for  in  the  name  and  behalf  of  the 
United  States  in  the  libel  of  the  19  th  of  September,  1839,  is,  that  the 
court  should  make  such  other  order  in  the  premises  as  it  should 
think  fit,  right,  and  proper. 

To  this  expedient  it  was  necessary  for  the  court  to  resort.  The 
court  did  not  know— it  could  not  know  that  the  demand  of  the 
Spanish  Minister,  Calderon,  was  not  only  widely  different  from  that 
which  the  libel  of  the  District  Attorney  represented  it  to  be,  but 
absolutely  incompatible  with  it.  The  court  took  it  for  granted  that 
the  statement  in  the  libels,  at  least  so  far  as  concerned  the  demand  of 
the  Spanish  Minister,  was  true — and  so  far  as  respected  the  only 
Ladino  on  board  the  Amistad,  the  boy  Antonio,  did  accede  to  the 
supposed  demand  of  the  Minister — did  actually  admit  the  treaty 
stipulation  as  applicable  to  him — and  did  decree  that  he  should  be 
restored  to  the  legal  representatives  of  his  deceased  master.  The 
judge  of  the  District  Court  relieved  Antonio  from  his  right  of  ap- 
peal  from  that  decision  by  stating  that  Antonio  himself  desired  te 


V" 


44 


be  restored  to  his  widowed  mistress.  But  as  the  whole  decree 
was  the  result  of  a deception  practised  upon  the  court,  and  as  in 
that  part  of  it  relating  to  Antonio,  are  involved  principles  of  the 
deepest  interest  to  human  freedom,  and  to  the  liberties  of  my 
country,  I will  only  express  my  most  earnest  hope,  with  profound 
respect  for  the  court,  that  that  portion  of  its  decision  will  never  be 
adduced  as  authority  for  the  surrender  of  any  other  individual 
situated  as  Antonio  was  on  that  trial. 

And  here  I must  avail  myself  of  the  occasion  to  state  my  objec- 
tions to  the  admission  of  the  case  of  the  Antelope  as  an  authorita- 
tive precedent  in  this  or  any  other  court  of  the  United  States — I 
had  almost  said  for  any  thing,  certainly  for  the  right  of  the  court 
itself  to  deliver  up  to  slavery  any  human  individual  at  the  demand 
of  any  diplomatic  or  consular  agent  of  any  foreign  power.  And 
that  I may  be  enabled  to  set  forth  at  large,  my  reasons  for  resist- 
ing the  application  of  that  case  as  precedent  or  authority  for  the 
settlement  of  any  principle  now  under  the  consideration  of  the 
Court,  I must  ask  the  permission  of  the  Court  to  review  the  case  of 
the  Antelope  itself,  as  it  appears  on  the  face  of  the  Reports. 

[See  the  review  of  the  case  of  the  Antelopg,  at  the  close  of  the 
argument.] 

And  this  declaration  of  the  Spanish  minister  not  only  contradicts 
it,  but  shows  that  it  was  impossible  any  such  demand  should  have 
been  made.  “ For,  let  it  be  remembered,”  he  says,  “ that  the 
Spanish  legation  demands  not  slaves  but  assassins.”  No  despot- 
ism could  comply  with  both  demands,  had  they  been  made,  but  the 
Spanish  Minister  explicitly  declares  that  only  one  demand  was 
made  by  the  legation,  and  that  not  the  one  affirmed  by  the  Secreta- 
ry of  State — not  property  but  assassins — not  for  the  benefit  of  in- 
dividuals, but  to  satisfy  ‘'public  vengeance.”  There  is  something 
follows  in  the  letter  about  “ fanaticism,”  which  I will  not  read  to 
the  Court,  for  reasons  that  will  be  obvious.*  Indeed,  I do  not  know 

* It  is  proper  to  append  this  part  of  the  letter,  that  the  allusion  may  be  under, 
stood  by  the  reader,  as  it  doubtless  was  by  the  Court. — Reporter. 

“Very  different,  however,  have  been  the  results  ; for,  in  the  first  place  the  trea- 
ty of  1795  has  not  been  executed,  as  the  legation  of  her  Catholic  Majesty  has  so- 
licited ; and  the  public  vengeance  has  not  been  satisfied  ; for  be  it  recollected  that 
the  legation  of  Spain  does  not  demand  the  delivery  of  slaves,  but  of  assassins. 
Secondly,  great  injury  has  been  done  to  the  owners;  not  the  least  being  the  im- 
prisonment which  Don  Jose  Ruiz  is  now  undergoing,  notwithstanding  the  com 


45 


as  I understand  it,  and  it  is  possible  that  I have  indulged,  or  may 
indulge  in  what,  in  certain  dialects,  may  be  called  “ fanaticism,” 
myself.  The  Chevalier  proceeds  to  reason  : 

“ Thus  it  appears  that  a court  of  one  of  the  States  of  the  con- 
federacy has  assumed  the  direction  of  an  affair  over  which  it  has 
no  jurisdiction;  that  there  can  be  no  law,  either  anterior  or  pos- 
terior to  the  treaty,  upon  which  a legal  sentence  can  be  based ; 
that  this  court,  by  the  repeated  delays  which  it  orders,  contributes 
to  delay  the  satisfaction  demanded  by  public  justice  ; and  that,  in 
consequence,  the  affair  should  only  be  determined  by  reference  to 
international  right,  and,  therefore,  by  the  exercise  of  the  power  of 
the  Government,  ( gubernativamente  ;)  that,  for  its  determination, 
the  treaty  exists  to  which  Spain  appeals  ; that,  from  the  delay  on 
this  determination  have  proceeded  injuries  requiring  indemnifica- 
tion, to  demand  which  the  undersigned  reserves  his  right  for  a fu- 
ture occasion.  The  undersigned  may,  without  indiscretion, 
declare  that  this  must  be  the  opinion  of  the  cabinet,  which,  pos- 
sessing already  the  necessary  and  even  indispensable  powers,  may 
immediately  act  {gubernativamente)  in  this  matter,  in  virtue  of 
the  actual  state  of  the  law,  and  without  awaiting  the  decision  of 
any  court.  Not  to  do  so  may  give  rise  to  very  complicated  ex- 
planations with  regard  to  reciprocity  in  the  execution  and  fulfil- 
ment of  treaties.” 

Here  it  is.  “ Gubernativamente ,”  again  ; that  is  the  idea  which 
was  in  the  mind  of  the  Spanish  minister  all  the  while,  gubernativa- 
mente. That  is  what  he  was  insisting  on,  that  was  the  demand 
which  the  Secretary  of  State  never  repelled  as  he  ought,  by  telling 
Mr.  Argaiz  that  it  was  not  only  inadmissible  under  our  form  of 
government,  but  would  be  offensive  if  repeated.  But  where  will 
your  Honors  find  any  thing  like  a demand  for  property,  under  the 
treaty,  and  by  the  decision  of  a court  of  the  United  States?  He 
says,  if  the  Executive  does  not  at  once  act  gubernativamente , and 
take  the  case  out  of  the  judiciary,  and  send  these  people  to  Cuba,  it 
“ may  give  rise  to  complicated  explanations  with  regard  to  recip- 

plaints  made  on  that  subject,  which,  if  not  entirely  disregarded,  have  at  least  not 
produced  the  favorable  results  which  might  have  been  expected  ; and  the  dignity 
of  the  Spanish  nation  has  thus  been  offended.  With  respect  to  which  injuries,  the 
undersigned  will,  on  a proper  occasion,  use  his  right;  although  no  indemnification 
can  fully  recompense  for  the  evils,  physical  and  moral,  which  the  persecutions  and 
vexations  occasioned  by  fanaticism  may  cause  to  an  honorable  man.” 


46 


rocity  in  the  execution  and  fulfilment  of  treaties.”  Is  that  lan- 
guage for  a foreign  minister  to  use  to  the  American  Secretary  of 
State,  and  not  to  be  answered  1 He  then  says  : 

“ The  undersigned  flatters  himself  with  the  hope  that  his  Excel- 
lency the  President  will  take  into  his  high  consideration  this  com- 
munication, to  which  the  undersigned  hopes  for  a speedy  answer, 
as  a new  proof  of  the  scrupulousness  and  respect  with  which  this 
nation  fulfils  the  treaties  existing  with  other  nations.  If,  contrary 
to  this  hope,  the  decision  should  not  be  such  as  the  undersigned 
asks,  he  can  only  declare  the  General  Government  of  the  Union  re - 
sponsible  for  all  and  every  consequence  which  the  delay  may  pro- 
duce.” 

There  is  the  language  used  by  the  representative  of  her  Catho- 
lic Majesty  to  the  Secretary  of  State  of  the  United  States,  and  to 
which  the  Secretary  never  thought  it  necessary  to  make  a suitable 
reply.  There  is  another  correspondence  published  among  the  doc- 
uments of  the  present  session  of  Congress,  connected  too  with  this 
very  case,  which  shows  that  the  Secretary  knows  how  to  be  very 
sensitive  with  regard  to  any  thing  that  looks  like  foreign  interfer- 
ence with  the  action  of  our  courts  and  government.  It  is  in  his 
answer  to  Mr.  Fox,  the  British  ambassador,  who  addressed  a letter 
to  Mr.  Forsyth,  January  20th,  1841,  saying  he  had  been  instructed 
to  represent  to  the  President  that  the  attention  of  his  government 
“ has  been  seriously  directed  to  the  case”  of  these  Africans,  and 
in  consequence  of  the  treaty  between  Great  Britain  and  Spain,  in 
which  the  former  paid  a valuable  consideration  for  the  abandon- 
ment of  the  trade,  it  is  “ moved  to  take  a special  and  peculiar  in- 
terest in  the  fate  of  these  unfortunate  Africans.”  And  he  says  : 

“ Now  the  unfortunate  Africans,  whose  case  is  the  subject  of 
the  present  representation,,  have  been  thrown  by  accidental  cir- 
cumstances into  the  hands  of  the  authorities  of  the  United  States  ; 
and  it  may  probably  depend  upon  the  action  of  the  United  States 
Government,  whether  these  persons  shall  recover  the  freedom  to 
which  they  are  entitled,  or  whether  they  shall  be  reduced  to 
slavery,  in  violation  of  the  known  laws  and  contracts  publicly  pass- 
ed, prohibiting  the  continuance  of  the  African  slave  trade  by 
Spanish  subjects. 

“ It  is  under  these  circumstances  that  Her  Majesty’s  Govern- 
ment anxiously  hope  that  the  President  of  the  United  States  will 
find  himself  empowered  to  take  such  measures  in  behalf  of  the 


47 


aforesaid  Africans  as  shall  secure  to  them  the  possession  of  their 
liberty,  to  which,  without  doubt,  they  are  by  law  entitled.” 

The  Secretary  of  State,  in  his  reply,  consents  to  receive  the 
communication,  “ as  an  evidence  of  the  benevolence  of  her  Majes- 
ty’s Government,  under  which  aspect  alone he  says,  “ it  could  be 
entertained  by  the  Government  of  the  United  States.”  What  a 
different  tone  is  here  ! Mr.  Fox  merely  referred  to  the  relations 
of  his  own  government  with  that  of  Spain,  and  to  the  10th  article 
of  the  treaty  of  Ghent,  between  Great  Britain  and  the  United 
States,  in  which  both  nations  bound  themselves  “ to  use  their 
best  endeavors  for  the  entire  abolition  of  the  African  slave  trade.” 
His  letter  was  courteously  worded  throughout.  It  casts  no  impu- 
tations upon  any  branch  of  our  government,  it  pronounces  no  part 
of  it  incompetent  to  its  functions,  it  asks  no  unconstitutional  and 
despotic  interference  of  the  Executive  with  the  judiciary  guberna- 
tivamente,  but  simply  announces  the  interest  his  government  feels 
in  the  case,  and  its  “ anxious  hope  that  the  President  of  the 
United  States  will  find  himself  empowered  to  take  such  measures 
in  behalf  of  the  aforesaid  Africans  as  shall  secure  to  them  their 
liberty,  to  which,”  he  says,  “ without  doubt,  they  are  by  law  en- 
titled.” To  this  the  Secretary  of  State  replies  : 

“ Viewing  this  communication  as  an  evidence  of  the  benevo- 
lence of  her  Majesty’s  Government— under  which  aspect  alone 
it  could  be  entertained  by  the  Government  of  the  United  States — 
I proceed,  by  direction  of  the  President,  to  make,  in  reply,  a few 
observations  suggested  by  the  topics  of  your  letter.  The  narra- 
tive presented  therein,  of  the  circumstances  which  brought  these 
negroes  to  our  shores,  is  satisfactory  evidence  that  her  Majesty’s 
Government  is  aware  that  their  introduction  did  not  proceed  from 
the  wishes  or  direction  of  the  Government  of  the  United  States. 
A formal  demand  having  been  made  by  the  Spanish  minister  for 
the  delivery  of  the  vessel  and  property,  including  the  negroes  on 
board , the  grounds  upon  which  it  is  based  have  become  the  sub- 
ject of  investigation  before  the  judicial  tribunals  of  the  country, 
which  have  not  yet  pronounced  their  final  decision  thereupon. 
You  must  be  aware , sir , that  the  Executive  has  neither  the  power  nor 
the  disposition  to  control  the  proceedings  of  the  legal  tribunals  when 
acting  within  their  own  appropriate  jurisdiction .” 

How  sensitive  the  Secretary  is  now  ! How  quick  to  perceive 
an  impropriety  ! How  alive  to  the  honor  of  the  country — much 


48 


more  so,  indeed,  than  the  case  required.  How  different  his  course 
from  that  pursued  toward  the  Spanish  minister,  who  had  been 
from  the  beginning  to  the  end  pressing  upon  our  government  de- 
mands the  most  inadmissible,  the  most  unexampled,  the  most 
offensive,  and  yet  received  from  the  Secretary  no  answer,  but 
either  a prompt  compliance  with  his  requirements,  or  a plain  de- 
monstration of  regret  that  compliance  was  impracticable.  Not 
one  attempt  do  we  find  by  the  Secretary  to  vindicate  the  honor  of 
the  country,  or  to  press  the  Spanish  minister  to  bring  forward  his 
warrant  for  such  unexampled,  such  humiliating  demands.  Neither 
does  he  intimate  in  the  case  of  the  Spanish  claim,  that  it  is  re- 
ceived on  the  ground  of  “ benevolence.”  Indeed  he  could  not 
very  well  offer  that  as  an  apology.  Benevolence  ! The  burning 
of  these  forty  Africans  at'the  stake,  as  the  result  of  a compliance 
by  our  Executive  with  the  Spanish  demand,  would  hardly  tend  to 
exhibit  or  inspire  “ benevolence.” — No,  it  was  for  vengeance 
that  they  were  demanded,  admitted  to  be  so  in  this  very  letter. 

In  the  same  letter  the  Secretary  of  State  does  not  undertake  to 
controvert  the  principles  set  forth  by  Mr.  Calderon,  nor  the  argu- 
ments urged  by  Mr.  Argaiz  ; but  repeats  that  they  had  been  sub- 
mitted to  the  President  for  consideration.  And  that  is  all  the 
answer  ever  given  to  the  Spanish  legation.  He  then  refers  to  va- 
rious personal  conversations  with  the  minister  of  Spain. 

“ It  was  hoped  that,  in  the  various  conversations  which  have 
since  taken  place  with  the  Chevalier  d’Argaiz  at  this  depart- 
ment, on  the  same  subject,  he  would  have  discovered  additional 
evidence  of  the  desire  of  the  United  States  Government  to  do  jus- 
tice to  the  demand  and  representation  addressed  to  it  in  the  name 
of  that  of  Spain,  as  fully  and  as  promptly  as  the  peculiar  character 
of  the  claim  admitted.  From  the  repeated  communications  of 
the  Chevalier  d’Argaiz,  pressing  for  the  disposal  of  the  question  ; 
from  his  reiterated  offer  of  suggestions  as  to  the  course  by  which 
he  deems  it  incumbent  upon  this  Government  to  arrive  at  a 
final  decision ; and  from  the  arguments  in  'support  of  those  sug- 
gestions,  which  the  undersigned  does  not  perceive  the  utility  of  com. 
bating  at  the  present  stage  of  the  transaction.” 

The  Secretary  makes  no  pretension  to  contest  the  claims  of 
Spain — not  even  a suggestion  of  the  idea  that  these  claims  are 
inadmissible,  or  that,  if  pressed,  they  would  be  offensive.  In 
these  conversations,  many  things  may  have  been  said  which  per- 


49 


haps  it  would  not  have  been  deemed  compatible  with  the  public 
interest  to  make  public.  I shall  justify  this  intimation  before  I 
am  through  with  this  remarkable  correspondence.  But  it  is  evi- 
dent there  was  no  resistance  of  the  claims  in  questioffas  to  their 
justice,  no  examination  of  their  principles.  The  Secretary  says 
he  does  not  perceive  the  utility  of  combating  any  of  these  de- 
mands or  allegations,  and  he  refers  to  these  private  conversations 
as  evidence  that  the  Government  is  perfectly  disposed  to  do  all 
that  is  demanded.  He  continues  by  saying — 

“ The  Government  of  the  United  States  cannot  but  perceive 
with  regret  that  the  Chevalier  d’Argaiz  has  not  formed  an  ac- 
curate conception  of  the  true  character  of  the  question,  nor  of  the 
rules  by  which,  under  the  constitutional  institutions  of  the  coun- 
try, the  examination  of  it  must  be  conducted  ; nor  a correct  ap- 
preciation of  the  friendly  disposition  toward  Her  Catholic  Majes- 
ty’s Government,  with  which  that  examination  was  so  promptly 
entered  upon.  In  connection  with  one  of  the  points  in  the  Chev- 
alier d’Argaiz’s  last  note,  the  undersigned  will  assure  him,  that 
whatever  be,  in  the  end,  the  disposal  of  the  question,  it  will  be  in 
consequence  of  a decision  emanating  from  no  other  source  than 
the  Government  of  the  United  States  ; and  that,  if  the  agency  of 
the  judicial  authority  shall  have  been  employed  in  conducting  the 
investigation  of  the  case,  it  is  because  the  judiciary  is,  by  the  or- 
ganic law  of  the  land,  a portion,  though  an  independent  one,  of 
that  Government.” 

That  is  to  say,  so  it  is,  and  we  can’t  help  it,  the  judiciary  is  in- 
dependent, it  must  have  its  course,  and  we  cannot  help  it.  He 
proceeds : 

“As  to  the  delay  which  has  already  attended,  and  still  may  at- 
tend, a final  decision,  and  which  the  Chevalier  d’Argaiz  considers 
as  a legitimate  subject  of  complaint,  it  arises  from  causes  which 
the  undersigned  believes  that  it  would  serve  no  useful  purpose  to 
discuss  at  this  time , farther  than  to  say  that  they  are  beyond  the 
control  of  this  department,  and  that  it  is  not  apprehended  that 
they  will  affect  the  course  which  the  Government  of  the  United 
States  may  think  it  fit  ultimately  to  adopt.” 

The  Spanish  minister  is  here  given  to  understand,  in  his  ear, 
that  care  had  been  taken  to  prevent  the  Africans  from  being  placed 
beyond  the  control  of  the  Executive,  and  therefore  he  need  be 
under  no  apprehension  that  the  decision  of  the  courts,  whatever 
7 


50 


it  may  be,  “will  affect  the  course  which  the  Government  of  the 
United  States  may  think  it  fit  ultimately  to  adopt.”  What  other 
construction  can  possibly  be  given  to  this  paragraph  1 If  any 
other  is  possible  from  the  words  there  are  facts  in  the  case  which 
prove  that  this  was  what  was  intended.  The  Secretary  proceeds 
with  his  explanations  and  apologies. 

“ The  undersigned  indulges  the  hope  that,  upon  a review  of  the 
circumstances  of  the  case,  and  the  questions  it  involves,  the  Chev- 
alier d’Argaiz  will  agree  with  him  in  thinking  that  the  delay 
which  has  already  occurred  is  not  more  than  commensurate  with 
the  importance  of  those  questions  ; that  such  delay  is  not  uncom- 
mon in  the  proceedings  and  deliberations  of  governments  desi- 
rous of  taking  equal  justice  as  the  guide  of  their  actions;  and 
that  the  caution  which  it  has  been  found  necessary  to  observe  in 
the  instance  under  consideration,  is  yet  far  from  having  occasion- 
ed such  procrastination  as  it  has  been  the  lot  of  the  United  States 
frequently  to  encounter  in  their  intercourse  with  the  Government 
of  Spain.” 

“ With  regard  to  the  imprisonment  of  Don  Jose  Ruiz,  it  is  again 
the  misfortune  of  this  Government  to  have  been  entirely  misap- 
prehended by  the  Chevalier  d’Argaiz,  in  the  agency  it  has  had  in 
this,  an  entirely  private  concern  of  a Spanish  subject.  It  was  no 
more  the  intention  of  this  department,  in  what  has  already  been 
done,  to  draw  the  Chevalier  d’Argaiz  into  a polemical  discussion 
with  the  Attorney  of  the  United  States  for  the  district  of  New 
York,  than  to  supply  Don  Jose  Ruiz,  gratis,  with  counsel  in  the 
suit  in  which  he  had  been  made  a party.  The  offer  made  to  that 
person  of  the  advice  and  assistance  of  the  District  Attorney,  was  a 
favor — an  entirely  gratuitous  one — since  it  was  not  the  province  of 
the  United  States  to  interfere  in  a private  litigation  between  sub- 
jects of  a foreign  state,  for  which  Mr.  Ruiz  is  indebted  to  the  de- 
sire of  this  government  to  treat  with  due  respect  the  application 
made  in  his  behalf  in  the  name  of  her  Catholic  Majesty,  and  not  to 
any  right  he  ever  had  to  be  protected  against  alledged  demands  of 
individuals  against  him  or  his  property.” 

Here,  then,  it  is  avowed  that  the  Executive  government  of  this 
nation  had  interposed  in  a suit  between  two  parties,  by  extend- 
ing a favor  entirely  gratuitous  to  one  of  the  parties,  who,  it  is  at 
the  same  time  admitted,  had  no  claim  whatever  to  this  gratuitous 
aid.  And  then  comes  the  exhibition  which  l have  already  read,  of 


51 


the  national  sympathy,  in  which  all  the  authorities  of  the  country 
are  alledged  to  have  participated,  and  the  assumption,  under  which 
all  the  proceedings  have  been  carried  on,  that  there  was  but  one 
party  aggrieved  in  the  case,  and  that  party  was  the  Spanish  slave- 
traders. 

On  the  25th  of  December  the  Chevalier  d’Argaiz  addressed  a 
long  letter  to  the  Secretary  of  State,  in  which  he  acknowledges 
the  receipt  of  the  last  letter,  to  which  “ it  would  be  superfluous” 
— the  word  is  ocioso,  idle — to  reply,  inasmuch  as  the  Secretary 
of  State  does  not  seem  to  have  considered  it  requisite  in  the  present 
situation  of  the  affair,  to  combat  th  : arguments  adduced  hy  the  under- 
signed. The  delicacy  of  the  undersigned  does  not,  however,  al- 
low him  to  pass  over  (desoir)  certain  insinuations  (remarks)  con- 
tained in  the  said  note  ; and  it  will,  perhaps,  be  difficult  for  him 
to  avoid  adducing  some  new  argument  in  support  of  his  de- 
mands.” 

The  Secretary  had  never  met  these  claims  and  arguments,  as  it 
was  his  duty  to  do,  and  the  Spanish  minister  is  continually  re- 
minding- him  that  he  does  not  answer  his  arguments.  He  then 
refers  him  to  his  own  course,  and  says,  “ The  undersigned  would 
not  have  troubled  the  Government  of  the  Union  with  his  urgent 
demand,  if  the  two  Spaniards  (who,  as  the  Secretary  of  State,  in 
his  note  of  the  12ffi,  says,  ‘were  found  in  this  distressing  and  per- 
ilous stuation  by  officers  of  the  United  States,  who,  moved  by  sym- 
pathetic feelings,  which  subsequently  became  national,’)  had  not 
been  the  victims  of  an  intrigue,  as  accurately  shown  by  Mr.  For- 
syth, in  the  conference  which  he  had  with  the  undersigned  on  the 
21st  of  October  last.” 

He  here  refers  to  a private  conference  in  which  the  Secretary 
of  State  had  accurately  shown  that  the  two  Spaniards  in  New 
York  were  the  “ victims  of  an  intrigue.”  The  Secretary  of  State  of 
the  United  States,  then,  had  confidentially  and  officially  informed 
the  Spanish  minister  that  the  two  Spaniards,  in  being  arrested  at 
the  suit  of  some  of  these  Africans,  were  the  “victims  of  an  in- 
trigue.” What  the  Secretary  meant  by  “victims  of  an  intrigue, ”is 
not  for  me  to  say.  These  Spaniards  had  been  sued  in  the  courts 
of  the  state  of  New  York  by  some  of  my  clients,  for  alledged 
wrongs  done  to  them  on  the  high  seas — for  cruelty,  in  fact,  so 
dreadful,  that  many  of  their  number  had  actually  perished  under 
the  treatment.  These  suits  were  commenced  by  lawyers  of  New 


52 


Ifork — men  of  character  in  their  profession.  Possibly  they  ad- 
vised with  a few  other  individuals — fanatics,  perhaps,  I must  call 
them,  according  to  the  general  application  of  language,  hut  if  I 
were  to  speak  my  own  language  in  my  own  estimate  of  their  char- 
acter, so  far  as  concerns  this  case,  and  confining  my  remarks  ex- 
clusively to  this  present  case,  I should  pronounce  them  the 
FRIENDS  OF  HUMAN  NATURE — men  who  were  unable  to 
see  these,  their  fellow  men,  in  the  condition  of  these  unfortunate 
Africans,  seized,  imprisoned,  helplessyfriendless,  without  language 
to  complain,  without  knowledge  to  understand  their  situation  or 
the  means  of  deliverance — I say  they  could  not  see  human  beings 
in  this  condition  and  not  undertake  to  save  them  from  slavery  and 
death,  if  it  was  in  their  power/)— not  by  a violation  of  the  laws,  but 
by  securing  the  execution  of  the  laws  in  their  favor.  These  are 
the  men  whom  the  American  Secretary  of  State  arraigns  in  a 
confidential  conversation  with  the  minister  of  Spain,  as  the  insti- 
gators of  “ an  intrigue”  of  which  he  holds  these  disappointed 
slave-holders  to  be  the  unfortunate  victims.  The  Chevalier  goes 
on  : 

‘•The  Secretary  of  State,  however,  says  that  ‘he  cannot  but  per- 
ceive with  regret  that  the  Chevalier  d’Argaiz  has  not  formed  an 
accurate  conception  of  the  true  character  of  the  question,  nor  of 
the  rules  by  which,  under  the  constitutional  institutions  of  this 
country,  the  examination  of  it  must  be  conducted.’  Possibly  the 
undersigned  may  not  have  formed  such  an  accurate  conception 
of  this  affair,  since  it  has  been  carried  within  the  circle  of  le- 
gal  subtleties,  as  he  has  not  pursued  the  profession  of  the  law ; 
but  he  is  well  persuaded  that,  if  the  crew  of  the  Amistad  had  been 
composed  of  white  men,  the  court,  or  the  corporation  to  which 
the  Government  of  the  Union  might  have  submitted  the  examina- 
tion of  the  question,  would  have  observed  the  rules  by  which  it 
should  be  conducted  under  the  constitutional  institutions  of  the 
country,  and  would  have  limited  itself  to  the  ascertainment  of  the 
facts  of  the  murders  committed  on  the  30th  of  June  5 and  the  un- 
dersigned does  not  comprehend  the  privilege  enjoyed  by  negroes, 
in  favor  of  whom  an  interminable  suit  is  commenced,  in  which 
everything  is  deposed  by  every  person  who  pleases  ; and,  for  that 
object,  an  English  doctor,  who  accuses  the  Spanish  government 
of  not  complying  with  its  treaties,  and  calumniates  the  Captain 
General  of  the  island  of  Cuba,  by  charging  him  with  bribery.” 


53 


Here  it  is  made  the  subject  of  complaint  from  a foreign  ambas- 
sador  to  the  Executive  Government  of  the  United  States,  that  in 
a court  of  the  United  States,  in  a trial  for  the  life  and  liberty  of 
forty  human  beings,  the  testimony  of  “ an  English  doctor”  was  re- 
ceived. And  this  complaint  also  was  received  without  a reply. 
The  “ English  doctor,”  thus  spoken  of,  was  Doctor  Madden,  a 
man  of  letters,  and  in  the  official  employ  of  the  British  Govern- 
ment, in  a post  of  much  importance  and  responsibility,  as  the  su- 
perintendant  of  liberated  Africans  at  Havana.  His  testimony 
was  highly  important  in  the  case  and  was  admitted  in  the  court 
below,  and  now  forms  a part  of  the  record  now  before  your  Honors. 
He  does  not  use  the  word  bribery  in  reference  to  the  Governor 
General  of  Cuba. 

DEATH  OF  JUDGE  BARBOUR THE  PROCEEDINGS  OF  THE  COURT  SUS- 

PENDED. 

Washington , Feb.  25,  1841. 

The  proceedings  of  the  Court  in  this  solemn  case  have  been 
interrupted  by  the  solemn  voice  of  death.  One  of  the  learned 
and  honorable  judges  of  the  Court,  who  sat  yesterday  in  his 
place,  listening  with  profound  and  patient  attention  to  the  argu- 
ment of  a counsellor  many  years  older  than  himself,  reasoning 
eloquently  in  behalf  of  justice  on  earth,  has  been  summoned  to 
his  own  dread  account,  at  the  bar  of  Eternal  Justice  above.  Judge 
Barbour,  of  Virginia,  the  seventh  in  rank  on  the  bench,  died  last 
night  in  his  bed — in  his  sleep,  it  is  probable,  without  a groan  or  a 
struggle.  The  servant  at  his  lodgings  went  at  the  usual  hour  this 
morning  to  the  rooms  of  the  different  Judges,  to  call  them  to 
breakfast.  As  the  Chief  Justice  was  passing  the  door  of  Judge 
Barbour’s  room,  the  man  said  to  him,  “ Chief  Justice,  will  you 
please  to  come  here,  sir — I think  Judge  Barbour  is  dead.”  Judge 
Taney  went  to  the  bed,  and  there  saw  his  associate  lying  on  his 
side,  as  if  in  a gentle  sleep,  but  dead  and  cold,  with  the  exception 
of  a slight  remaining  warmth  at  the  chest.  Not  a muscle  was 
distorted,  nor  were  the  bed-clothes  in  the  slightest  degree  disturb- 
ed, so  that  it  is  probable  his  heart  ceased  to  beat  in  an  instant, 
while  he  was  asleep  ! 

At  the  usual  hour  for  opening  the  Court  this  morning,  none  of 
the  Judges  were  seen  in  the  court-room,  which  was  already  filled 
with  persons  come  to  hear  the  continuation  of  Mr.  \dams’  speech. 


54 


At  length  the  Judges  came  in  together,  and  their  countenances 
looked  pale,  distressed,  and  sorrowful.  As  soon  as  they  had  taken 
their  seats,  the  Crier  opened  the  Court  in  the  usual  form,  and  the 
Chief  Justice  addressed  the  gentlemen  of  the  bar — “ Gentlemen 
a painful  event  has  occurred — Judge  Barbour  died  suddenly  last 
night — and  the  Court  is  therefore  adjourned  until  Monday.” 

The  Crier  then  made  proclamation  to  that  effect,  the  Judges  all 
rose,  and  retired  again  to  their  private  apartment,  and  the  assem- 
bly withdrew. 

I did  not  expect  an  announcement  of  so  overwhelming  a Pro- 
vidence in  a manner  so  severely  simple  and  subdued,  but  it  struck 
me  as  eminently  appropriate  for  the  Supreme  Court  of  this  nation. 
It  was  in  keeping  with  the  strictest  propriety  and  suitableness.  It 
was  sublime. 


RESUMPTION  OF  THE  TRIAL. 

Washington , March  1,  1841. 

On  the  re-opening  of  the  Court,  the  Attorney  General  of  the  Unit- 
ed States,  H.  D.  Gilpin,  Esq.  presented  a series  of  appropriate  re- 
solutions in  reference  to  the  decease  of  Judge  Barbour,  which 
had  been  adopted  on  Friday,  at  a meeting  of  the  Bar  of  officers  of 
the  court,  and  which  he  moved  to  have  entered  on  the  records  of 
the  court'.  The  Chief  Justice  responded  in  a short  address,  and 
concluded  with  ordering  the  resolutions  to  be  entered  on  the  re- 
cords. Mr.  Adams  then  resumed  his  argument,  as  follows : — 
May  it  please  your  Honors, 

The  melancholy  event  which  has  occurred  since  the  argument 
of  this  case  was  begun,  and  which  has  suspended  for  a time  the 
operations  of  the  Court  itself,  and  which  I ask  permission  to  say 
that  I give  my  cordial,  and  painful  concurrence  in  the  sentiments 
of  the  Bar  of  this  Court — has  imposed  on  me  the  necessity  of 
re-stating  the  basis  and  aim  of  the  argument  which  I am  submit- 
ting to  the  Court,  in  behalf  of  the  large  number  of  individuals, 
who  are  my  unfortunate  clients. 

I said  that  my  confidence  in  a favorable  result  to  this  trial  rest- 
ed mainly  on  the  ground  that  I was  now  speaking  before  a Court 
of  JUSTICE.  And  in  moving  the  dismissal  of  the  appeal  taken 
on  behalf  of  the  United  States,  it  became  my  duty,  and  was  my 
object  to  show,  by  an  investigation  of  all  the  correspondence  of 
the  Executive  in  regard  to  the  case,  that  JUSTICE  had  not 


55 


been  the  motive  of  its  proceedings,  but  that  they  had  been  prompt" 
ed  by  sympathy  with  one  of  the  two  parties  and  against  the  other. 
In  support  of  this,  I must  scrutinize,  with  the  utmost  severity  ? 
every  part  of  the  proceedings  of  the  Executive  Government. 
And  in  doing  it,  I think  it  proper  for  me  to  repeat,  that  in  speak- 
ing of  the  impulse  of  sympathies,  under  which  the  government 
acted,  I do  not  wish  to  be  understood  to  speak  of  that  sympa- 
thy as  being  blameable  in  itself,  or  as  inducing  me  to  feel  un- 
friendly sentiments  towards  the  Head  of  the  Government,  or  the 
Secretary  of  State,  or  any  of  the  Cabinet.  I feel  no  unkind  sen- 
timents towards  any  of  these  gentlemen.  With  all  of  them,  I am, 
in  the  private  relations  of  life,  on  terms  of  intercourse,  of  the  most 
friendly  character.  As  to  our  political  differences,  let  them  pass 
for  what  they  are  worth,  here  they  are  nothing.  At  the  moment 
of  the  expiration  of  this  administration,  I feel  extreme  reluctance 
at  the  duty  of  bringing  its  conduct  before  the  court  in  this  man- 
ner, as  affecting  the  claims  of  my  clients  to  JUSTICE.  My  learn- 
ed friend,  the  Attorney  General,  knows  that  I am  not  voluntary 
in  this  work.  I here  descended  to  personal  solicitation  with  the 
Executive,  that  by  the  withdrawal  of  the  appeal,  I might  be  spar- 
ed the  necessity  of  appearing  in  this  cause.  I have  been  of  the 
opinion  that  the  case  of  my  clients  was  so  clear,  so  just,  so  right- 
eous, that  the  Executive  would  do  well  to  cease  its  prosecution, 
and  leave  the  matter  as  it  rvas  decided  by  the  District  Court,  and 
allow  the  appeal  to  be  dismissed.  But  I did  not  succeed,  and  now 
I cannot  do  justice  to  my  clients,  whose  lives  and  liberties  depend 
on  the  decision  of  this  Court — however  painful  it  may  be,  to  my- 
self  or  others. 

In  my  examination  of  the  first  proceedings  of  the  Executive  in 
this  case,  I did  scrutinize  and  analyze,  most  minutely  and  parti- 
cularly, the  four  demands  first  made  upon  our  government  by  the 
late  Spanish  minister,  Mr.  Calderon,  in  his  letter  to  the  Secretary 
of  State  of  Sept.  5,  1839.  I tested  the  principles  there  laid  down, 
both  by  the  laws  of  nations  and  by  the  treaties  between  the  two 
nations  to  which  he  had  appealed.  And  I showed  that  every  one 
of  these  demands  was  inadmissible,  and  that  every  principle  of 
law  and  every  article  of  the  treaty,  he  had  referred  to,  was  utter- 
ly inapplicable.  At  the  closg  of  my  argument  the  other  day,  I 
was  commenting  upon  the  complaint  of  the  present  minister,  the 
Chevelier  d’Argaiz,  addressed  to  the  Secretary  of  State  on  the 


56 


25th  of  December,  1839,  in  relation  to  the  injustice  he  alledges  to 
have  been  done  to  the  two  Spanish  subjects,  Ruiz  and  Montes,  by 
their  arrest  and  imprisonment  in  New  York,  at  the  suit  of  some  of 
the  Africans.  He  says  he  “ does  not  comprehend  the  privilege 
enjoyed  by  negroes,  in  favor  of  whom  an  interminable  suit  is  com- 
menced, in  which  everything  is  deposed  by  every  person  who 
pleases  ; and,  for  that  object,  an  English  doctor  who  accuses  the 
Spanish  Government  of  not  complying  with  its  treaties,  and  calum- 
niates the  Captain  General  of  the  island  of  Cuba,  by  charging  him 
with  bribery.” 

This  English  Doctor  is  Dr.  Madden,  whose  testimony  is  given 
in  the  record.  He  certainly  does  not  charge  the  Captain  General 
with  bribery,  although  he  says  that  both  he  and  the  other  authori- 
ties of  Cuba  are  in  the  habit  of  winking  or  conniving  at  the  slave- 
trade.  That  this  is  the  actual  state  of  affairs,  I submit  to  the 
Court,  is  a matter  of  history.  And  I call  the  attention  of  the  C ourt 
to  this  fact,  as  one  of  the  most  important  points  of  this  case.  It 
is  universally  known  that  the  trade  is  actually  carried  on,  contrary 
to  the  laws  of  Spain,  but  by  the  general  connivance  of  the  Gov- 
ernor General  and  all  the  authorities  and  the  people  of  the  island. 
The  case  of  this  very  vessel,  the  visit  of  Ruiz  and  Montes  to  the 
barracoon  in  which  these  people  were  confined,  the  vessel  in  which 
they  were  brought  from  Africa,  are  all  matters  of  history.  I have 
a document  which  was  communicated  by  the  British  government 
to  the  Parliament,  which  narrates  the  whole  transaction.  Mr.  A. 
here  read  from  the  Parliamentary  documents,  a letter  from  Mr. 
Jerningham,  the  British  Minister  at  Madrid,  to  the  Spanish  Secre- 
tary of  State,  dated  January  5th,  1840,  describing  the  voyage  of 
the  Tecora  from  Africa,  the  purchase  of  these  Africans  who  were 
brought  in  her,  with  the  subsequent  occurrences,  and  urging  the 
Spanish  Government  to  take  measures  both  for  their  liberation, 
and  to  enforce  the  laws  of  Spain  against  Ruiz  and  Montes. 

He  says  “ I have  consequently  been  instructed  by  my  govern- 
ment to  call  upon  the  government,  of  her  Catholic  Majesty  to 
issue,  with  as  little  delay  as  possible,  strict  orders  to  the  authori- 
ties of  Cuba,  that,  if  the  request  of  the  Spanish  minister  at  Wash- 
ington be  complied  with,  these  negroes  .may  be  put  in  possession 
of  the  liberty  of  which  they  were  deprived,  and  to  the  recovery  of 
which  they  have  an  undeniable  title. 

“I  am  further  directed  to  express  the  just  expectations  of  Her 


57 


Majesty's  government  that  the  Government  of  her  Catholic  Ma- 
jesty will  cause  the  laws  against  the  slave-trade  to  be  enforced 
against  Messrs.  Jose  Ruiz  and  Pedro  Montes,  who  purchased  these 
newly  imported  negroes,  and  against  all  such  other  Spanish  sub- 
jects as  have  been  concerned  in  this  nefarious  transaction.” 

These  facts,  said  Mr.  A.,  must  be  well  known  to  the  Spanish 
minister.  If  he  complains  of  injustice  in  the  charge  of  general 
connivance  made  by  Dr.  Madden,  why  has  he  not  undertaken  to 
prove  that  it  is  a calumny  1 Not  the  slightest  attempt  has  been 
made  to  bring  forward  any  evidence  on  this  point,  for  the  very 
plain  reason  that  there  could  be  none.  The  fact  of  the  slave  trade 
is  too  notorious  to  be  questioned.  I will  read,  said  he,  from  ano- 
ther high  authority,  a book  filled  with  valuable  and  authentic  in- 
formation on  the  subject  of  the  slave  trade,  written  by  one  of  the 
most  distinguished  philanthropists  of  Great  Britain,  Sir  Thomas 
Fowell  Buxton.  Mr.  A.  then  read  as  follows  : — 

“ It  is  scarcely  practicable  to  ascertain  the  number  of  slaves  im- 
ported into  Cuba:  it  can  only  be  a calculation  on,  at  best,  doubt- 
ful data.  We  are  continually  told  by  the  Commissioners,  that 
difficulties  are  thrown  in  the  way  of  obtaining  correct  informa- 
tion in  regard  to  the  slave  trade  in  that  island.  Everything  that 
artifice,  violence,  intimidation,  popular  countenance,  and  official 
connivance  can  do,  is  done,  to  conceal  the  extent  of  the  traffic. 
Our  ambassador,  Mr.  Villiers,  April,  1837,  says,  ‘ That  a privilege 
(that  of  entering  the  harbor  after  dark)  denied  to  all  other  vessels, 
is  granted  to  the  slave-trader  ; and,  in  short,  that  with  the  servants 
of  the  Government,  the  misconduct  of  the  persons  concerned  in 
this  trade  finds  favor  and  protection.  The  crews  of  captured  ves- 
sels  are  permitted  to  purchase  their  liberation  ; and  it  would  seem 
that  the  persons  concerned  in  this  trade  have  resolved  upon  set- 
ting the  government  of  the  mother  country  at  defiance.’  Almost 
the  only  specific  fact  which  I can  collect  from  the  reports  of  the 
Commissioners,  is  the  statement  ‘ that  1835  presents  a number  of 
slave  vessels  (arriving  at  the  Havana)  by  which  there  must  have 
been  landed,  at  the  very  least,  15,000  negroes.’  But  in  an  official 
letter,  dated  28th  May,  1836,  there  is  the  following  remarkable 
passage  : ‘ I wish  I could  add,  that  this  list  contains  even  one- 
fourth  of  the  number  of  those  which  have  entered  after  having 
landed  cargoes,  or  sailed  after  having  refitted  in  this  harbor.’  This 
would  give  an  amount  of  60,000  for  the  Havana  alone  ; but  is  Ha- 
8 


58 


vana  the  only  port  in  Cuba  in  which  negroes  are  landed?  The 
reverse  is  notoriously  true.  The  Commissioner  says,  ‘ I have 
every  reason  to  believe  that  several  of  the  other  ports  of  Cuba, 
more  particularly  the  distant  city  of  St.  Jago  de  Cuba,  carry  on 
the  traffic  to  a considerable  extent.’  Indeed,  it  is  stated  by  Mr. 
Hardy,  the.  consul  at  St.  Jago,  in  a letter  to  Lord  Palmerston,  of 
the  18th  February,  1837,  ‘ That  the  Portuguese  brig  Boca  Negra, 
landed  on  the  6th  inst.  at  Juragua,  a little  to  windward  of  this 
port,  (St.  Jago,)  400  Africans  of  all  ages,  and  subsequently  enter- 
ed this  port.’  But  in  order  that  we  may  be  assuredly  within  the 
mark,  no  claim  shall  be  made  on  account  of  these  distant  ports. 
Confining  ourselves  to  the  Havana,  it  would  seem  probable,  if  it 
be  not  demonstrated,  that  the  number  for  that  port,  a fortiori,  for 
the  whole  island,  may  fairly  be  estimated  at  60,000.” 

This  evidence  is  important  to  show  what  is  the  real  value  of 
this  certificate  of  the  Governor  General.  There  is  one  other 
proof  which  I will  read  to  the  court,  and  leave  it  to  your  Honors 
to  judge  of  its  bearing,  and  of  the  conclusion  to  which  it  arrives. 
It  is  the  statement  of  the  Spanish  vice  consul,  Mr.  Vega. 

“ The  following  statement  was  made  to  me  by  A.  G.  Vega,  Esq., 
Spanish  consul,  as  near  as  1 can  now  recollect,  and  according  to 
my  best  knowledge  and  belief,  10th  January,  1840. 

W.  S.  HOLABIRD. 

“That  he  is  a Spanish  subject ; that  he  resided  in  the  Island  of 
Cuba  several  years;  that  he  knows  the  laws  of  that  island  on  the 
subject  of  slavery  ; that  there  was  no  law  that  was  considered  in, 
force  in  the  Island  of  Cuba,  that  prohibited  the  bringing  in  African 
slaves  ; that  the  court  of  mixed  commissioners  had  no  jurisdiction 
except  in  case  of  capture  on  the  sea  ; that  newly  imported  African 
negroes  were  constantly  brought  to  the  island,  and  after  landing 
were  bona  fide  transferred  from  one  owner  to  another,  without 
any  interference  by  the  local  authorities  or  the  mixed  commission, 
and  were  held  by  the  owners  and  recognized  as  lawful  property; 
that  slavery  was  recognized  in  Cuba  by  all  the  laws  that  were  con- 
sidered in  force  there  ; that  the  native  language  of  the  slaves  was 
kept  up  on  some  plantations  for  years.  That  the  barracoons  are 
public  markets,  where  all  descriptions  of  slaves  are  sold  and 
bought;  that  the  papers  of  the  Amistad  are  genuine,  and  are  in  the 
usual  form  ; that  it  was  not  necessary  to  practice  any  fraud  to  ob- 


59 


tain  such  papers  from  the  proper  officers  of  the  government ; that 
none  of  the  papers  of  the  Amistad  are  signed  by  Martinez,  spoken 
of  by  R.  R.  Madden,  in  his  deposition  ; that  he  (Martinez)  did  not 
hold  the  office  from  whence  that  paper  issued.” 

This  is  the  statement  given  to  the  District  Attorney  by  Mr. 
Vega,  and  by  him  made  a part  of  this  case.  This  Spanish  func- 
tionary declares  positively,  that  he  knows  there  is  no  law  in  force 
in  Cuba  against  the  African  slave  trade,  and  that  recent  Africans 
are  held  and  sold  bona  fide  as  slaves.  It  is  conclusive  to  prove  this 
fact,  that  the  illegal  importation  and  purchase  of  Africans  is  openly 
practised  in  Cuba,  although  it  is  contrary  to  the  laws  of  Spain,  but 
those  laws  are  not  considered  in  force,  that  is,  the  violation  of 
them  is  constantly  connived  at  by  the  authorities. 

It  may  not  be  universally  known,  but  is  doubtless  known  to 
members  of  this  court,  that  there  is  a volume  of  correspondence  on 
this  subject,  by  our  consul  at  Havana,  which  will  be  communicat- 
ed to  Congress  for  publication  in  a few  days,  and  I can  state  from 
my  personal  knowledge  that  it  confirms  every  word  of  Dr.  Mad- 
den’s statements  on  this  point,  and  will  show  how  much  reliance 
is  to  be  placed  on  this  certificate  of  the  Governor-General. 

But  I will  return  to  the  letter  of  the  Chevalier  d’Argaiz.  I 
have  not  the  honor  of  knowing  this  gentleman  personally,  as  I 
knew  his  predecessor,  but  I certainly  entertain  no  feeling  of  un- 
kindness towards  him.  And  in  examining  his  correspondence,  al- 
though it  is  my  duty  to  show  that  his  demands  are  utterly  inad- 
missible and  unprecedented,  yet  it  must  be  admitted  that  his 
sympathy  and  partiality  for  his  own  countrymen  are  at  least  na- 
tural ; and  if  his  zeal  and  earnestness  are  somewhat  excessive,  they 
are  at  least  pardonable.  There  is  in  this  letter,  I must  say,  a 
simplicity,  what  the  French  call  bonhommie,  which  gives  me  a 
favorable  impression  of  his  character,  and  1 certainly  feel  the 
farthest  possible  from  a disposition  to  pass  any  censure  on  him. 
I repeat  that,  so  far  as  this  sympathy  is  concerned,  if  it  is  not  en- 
tirely excusable,  it  is  much  more  reasonable  than  it  is  in  some 
others  who  have  not  the  same  interests  to  defend.  He  goes  on 
to  express  his  pleasure  at  the  assurance  received  from  the  Secre* 
tary,  that  u whatever  may  be  the  final  settlement  of  the  question. 
It  will  be  in  consequence  of  a decision  emanating  from  the  gov- 
ernment, and  not  from  any  other  source and  he  adds,  that  “he 


(30 


doubts  not  such  decision  will  be  conformable  with  the  opinion 
which  was  confidentially  communicated  to  him  at  the  Department 
of  State  on  the  19th  of  November,  as  founded  on  that  of  a learned 
lawyer,  and  which  he  was  assured  had  been  adopted  by  the  cabi- 
net.” 

I take  it  for  granted  that  the  opinion  referred  to  is  the  opinion 
of  the  Attorney-General  of  that  time,  Mr.  Grundy,  contained  in  the 
Congressional  document.  It  will  be  necessary  for  me  to  examine 
that  document  before  I close,  as  well  as  the  other  papers,  and  I 
wish  to  say  that  the  decease  of  that  gentleman,  under  the  circum- 
stances in  which  it  occurred,  has  made  such  an  impression  on  my 
mind,  as  could  not  have  but  disarmed  me  of  any  disposition  to 
censure  him,  if  I had  before  entertained  it.  It  will  be  a painful 
duty  to  me  to  examine,  as  I must,  with  the  utmost  severity,  that 
document.  And  I shall  show  that  it  is  such,  that  neither  the 
courts  nor  the  cabinet  ought  ever  to  have  acted  on  it. 

In  another  part  of  his  letter,  M.  d’Argaiz  says  of  Ruiz  and 
Montes,  that  “ they  were  not  exempted  from  the  persecutions  of 
an  atrocious  intrigue , and  the  undersigned  is  not  the  first  who  has 
so  styled  this  persecution.’  This  is  a pretty  plain  intimation  that 
the  American  Secretary  of  State  was  the  first  who  called  the  suit 
of  my  clients  for  legal  redress  “ an  atrocious  intrigue,”  in  his 
“ confidential  conversation”  with  the  Spanish  minister.  This  is 
followed  by  an  idea  so  novel  and  ingenious  that  it  is  necessary  to 
repeat  the  whole  of  it.  After  complaining  that  negroes  should  be 
allowed  to  be  complainants,  he  goes  on  to  argue  that  they  ought 
to  be  considered,  “ morally  and  legally,  as  not  being  in  the  United 
States,”  and  of  course,  if  they  should  be  delivered  up  physically,  I 
suppose  it  was  to  be  inferred  that  the  Executive  would  not  incur 
any  responsibility. 

“ They  are  morally  and  legally  not  in  the  United  States,  be- 
cause the  court  of  Connecticut  has  not  declared  whether  or  not  it 
is  competent  to  try  them.  If  it  should  declare  itself  incompetent, 
it  declares  that  they  are  under  the  cover  of  the  Spanish  flag  $ and,, 
in  that  case,  they  are  physically  under  the  protection  of  a friend- 
•]y  government,  but  morally  and  legally  out  of  the  territory  and 
jurisdiction  of  the  United  States  ; and,  so  long  as  a doubt  remains 
on  this  subject,  no  judge  can  admit  the  complaint.  If  this  argu- 
ment be  of  any  value  to  the  Secretary  of  State  of  the  Government 
of  the  Union,  the  undersigned  entreats  him  to  prevail  on  the  Pres- 


'61 


ident  to  cause  a protest,  founded  on  this  argument,  to  be  official- 
ly addressed  to  the  court  of  New  York.” 

His  predecessor,  M.  Calderon,  called  upon  the  President  for  a 
proclamation  forbidding  the  courts  to  take  up  the  case,  and  the 
present  minister  of  Spain  insists  that  he  shall  send  forth  his  pro- 
test to  take  it  out  of  the  hands  of  the  courts — and  this  on  the 
ground,  that  my  clients,  although  personally  imprisoned  for 
eighteen  months  by  the  U.  S.  Marshal,  under  order  of  the  U.  S. 
Court,  yet  are  “not  morally  and  legally  in  the  United  States.” 
There  is  another  argument  of  the  same  gentleman,  very  much  of 
the  same  character.  The  court  will  find  it  in  his  first  letter  after 
the  arrest  of  Ruiz  and  Montes  at  New  York.  He  says: 

“ It  would  be  easy  to  demonstrate  the  illegality  of  these  arrests, 
the  orders  for  which  have  possibly  been  obtained  from  the  attorney 
by  surprise  : as  it  would  also  be  easy  to  show  the  ignorance  of 
the  declarant,  Tappan,  in  declaring  that  Ruiz  is  known  by  the 
name  of  Pipi,  whereas  he  would  have  been  known  and  distin- 
guished throughout  Spain,  as  all  other  Joses  are,  by  the  diminu- 
tive  of  Pepe,  and  thus  it  appears  that  a Pepe  has  been  imprisoned 
instead  of  a Pipi , which  I believe  the  law  does  not  permit.” 

The  argument  is  certainly  ingenious,  and  if  it  is  sound  at  all,  it 
is  worth  more  in  favor  of  the  Africans  than  of  the  Spaniards,  as  I 
may  hereafter  have  occasion  to  show,  when  I come  to  consider 
the  case  of  nine-and-forty  persons  with  Spanish  names,  who  have 
been  arrested  and  brought  into  court  by  African  names. 

The  Chevalier  d’Argaiz,  in  the  close  of  this  letter,  exhibits  his 
loyalty  towards  the  then  acting  sovereign  of  his  nation. 

“At  the  moment  when  the  heart  of  the  august  Queen-Govern- 
ess is  filled  with  delight  on  account  of  the  termination  of  a civil 
war,  and  the  assurance  of  the  throne  of  her  august  daughter,  her 
minister  in  the  United  States  has  to  perform  the  painful  duty  of 
diminishing  her  happiness  by  communicating  to  her,  as  he  did  by 
letter  on  the  19th  instant,  the  disagreeable  event  which  forms  the 
subject  of  this  communication.  The  desire  of  calming  the  dis- 
quiet which  this  news  may  occasion  in  the  mind  of  her  Majesty, 
together  with  that  of  alleviating  the  lot  of  the  two  prisoners,  urge 
the  undersigned  to  entreat  you,  Mr.  Secretary  of  State,  to  take  into 
consideration  what  he  has  here  set  forth,  and  to  afford  him  the 
means,  in  a prompt  reply,  of  satisfying  those  just  desires,  which 
will  be  completely  done  if  he  is  able  to  transmit  such  a reply  to 


62- 


his  Government  by  the  packet  sailing  for  Havre  on  the  1st  of 
November  next.” 

It  must  doubtless,  said  Mr.  A.,  be  some  consolation  to  this  loy- 
al minister,  to  reflect  that  before  the  august  Queen-Governess 
could  have  received  the  painful  intelligence  of  the  imprisonment 
of  two  such  meritorious  subjects  as  Ruiz  and  Montes  to  diminish 
her  happiness,  her  heart  had  been  gratified  in  a much  better  man- 
ner. In  the  pursuit  of  that  happiness  for  which  she  longed,  it 
seems  that  she  retired  altogether  from  the  cares  of  state,  into  the 
comforts  of  domestic  life,  with  a husband  that,  I hope  has  calmed 
her  disquiet,  and  if  it  should  ulimately  turn  out  that  the  lives  of 
these  poor  Africans  are  saved,  there  will  be  no  further  occasion  to 
diminish  the  happiness  of  the  august  Queen-Governess. 

On  the  30th  of  December,  five  days  after  the  date  of  the  letter 
I have  been  commenting  upon,  the  Chevalier  d’Argaiz  wrote 
again  to  the  Secretary  of  State. 

“ Washington,  December  30,  1839. 

“ Sir — In  the  conversation  which  I had  with  you  on  the  morning 
of  the  day  before  yesterday,  you  mentioned  the  possibility  that 
the  Court  of  Connecticut  might,  at  its  meeting  on  the  7th  of  Jan- 
uary next,  declare  itself  incompetent,  or  order  the  restitution  of 
the  schooner  Amistad,  with  her  cargo,  and  the  negroes  found  on 
board  of  her ; and  you  then  showed  me  that  it  would  be  necessa- 
ry for  the  legation  of  her  Catholic  .Majesty  to  take  charge  of  them 
as  soon  as  the  Court  should  have  pronounced  its  sentence  or  re- 
solution ; and,  although  I had  the  honor  to  state  to  you  that  this 
legation  could  not  possibly  transfer  the  said  negroes  to  Havana, 
still  it  appears  proper  for  me  now  to  declare  that — 

“ Considering  that  the  schooner  Amistad  cannot  make  a voyage, 
on  account  of  the  bad  condition  in  which  she  is,  of  her  being  en- 
tirely without  a crew : 

“ Considering  that  it  would  be  difficult  to  find  a vessel  of  the 
United  States  willing  to  take  charge  of  these  negroes,  and  to 
transport  them  to  Havana  ; and,  also,  that  these  negroes  have  de- 
clared before  the  Court  of  Connecticut  that  they  are  not  slaves  ; 
and  that  the  best  means  of  testing  the  truth  of  their  allegation  is 
to  bring  them  before  the  Courts  of  Havana : 

“ Beino-  at  the  same  time  desirous  to  free  the  Government  of 

O 

the  United  States  from  the  trouble  of  keeping  the  said  negroes  in 
prison,  I venture  to  request  you  to  prevail  upon  the  President  to 


63 


allow  to  the  Government  of  her  Catholic  Majesty  the  assistance 
which  it  asks  under  the  present  circumstances  from  that  of  the 
United  States,  by  placing  the  negroes  found  on  hoard  of  the  said 
schooner,  and  claimed  by  this  legation,  at  the  disposition  of  the 
Captain  General  of  the  Island  of  Cuba,  transporting  them  thither 
in  a ship  belonging  to  the  United  States.  Her  Catholic  Majesty’s 
Government,  I venture  to  assert,  will  receive  this  act  of  gene- 
rosity as  a most  particular  favor,  which  would  serve  to  strengthen 
the  bonds  of  good  and  reciprocal  friendship  now  happily  reigning 
between  the  two  nations.” 

Here  is  no  longer  a demand  for  the  delivery  of  slaves  to  their 
owners,  nor  for  the  surrender  of  the  Africans  to  the  Spanish  min- 
ister as  assassins,  but  an  application  to  the  President  of  the  United 
States  to  transport  forty  individuals  beyond  the  seas , to  be  tried 
for  their  lives.  Is  there  a member  of  this  Honorable  Court  that 
ever  heard  of  such  a demand  made  by  a foreign  minister  on  any 
government  1 Is  there  in  the  whole  history  of  Europe  an  in- 
stance of  such  a demand  made  upon  an  independent  government! 
I have  never  in  the  whole  course  of  my  life,  in  modern  or  ancient 
history,  met  with  such  a demand  by  one  government  on  another. 
Or,  if  such  a demand  was  ever  made,  it  was  when  the  nation  on 
which  it  was  made  was  not  in  the  condition  of  an  independent 
power. 

What  was  this  demand  ? It  was  that  the  Executive  of  the 
United  States,  on  his  own  authority,  without  evidence,  without 
warrant  of  law,  should  seize,  put  on  board  a national  armed  ship, 
and  send  beyond  seas,  forty  men,  to  be  tried  for  their  lives.  I 
ask  the  learned  Attorney  General  in  his  argument  on  this  point 
of  the  case,  to  show  what  is  to  be  the  bearing  of  this  proceeding 
on  the  liberties  of  the  people.  I ask  him  to  tell  us  what  authori- 
ty there  is  for  such  an  exercise  of  power  by  the  Executive.  I 
ask  him  if  there  is  any  authority  for  such  a proceeding  in  the 
case  of  these  unfortunate  Africans,  which  would  not  be  equally 
available,  if  any  President  thought  proper  to  exercise  it,  to  seize 
and  send  off  forty  citizens  of  the  United  States.  Will  he  vin- 
dicate such  an  authority!  Will  this  Court  give  it  a judicial 
sanction? 

But,  may  it  please  your  Honors,  what  was  the  occasion,  the 
cause,  the  motive,  which  induced  the  Secretary  of  State  to  hold 


64 


this  personal  communication  with  the  Spanish  minister  on  the 
28th  of  December  ? What  had  occurred,  to  induce  the  Secretary 
of  State  to  send  for  the  Chevalier  d’Argaiz,  and  tell  him  that  the 
court  of  Connecticut  was  about  to  pass  a decree  that  these  Afri- 
cans should  be  delivered  up,  and  that  our  government  would  be 
ready  to  deliver  them  to  him ! What  induced  the  Secretary  of 
State  to  come  to  the  conclusion  that  there  was  any  sort  of  proba- 
bility that  the  Court  of  Connecticut  would  so  adjudge  1 The  docu- 
ments do  not  inform  us  at  whose  suggestion  or  by  what  information 
the  Secretary  of  State  acted  in  this  remarkable  manner.  We  are 
left  to  infer,  that  his  course  was  founded,  probably,  on  the  opinion 
of  the  late  Attorney  General,  with  a suggestion  from  the  District 
Attorney1  of  Connecticut.  I refer  to  a letter  of  the  Secretary  of 
State  to  Mr.  Holabird,  January  6,  1840,  in  connection  with  this 
letter  of  the  Spanish  minister,  of  December  30.  The  Secretary 
says — “ Your  letter  of  the  20th  ultimo,”  that  is,  the  20th  of  Decem- 
ber, “ was  duly  received.”  Now,  said  Mr.  Adams,  it  is  a remark- 
able fact,  that  this  letter  of  the  District  Attorney,  of  December  20? 
1839,  was  not  communicated  with  the  rest  of  the  documents.  Why 
it  was  not  communicated  is  not  for  me  to  say.  The  call  of  the 
House  of  Representatives  was  in  the  usual  form,  for  information 
“ not  incompatible  with  the  public  interest which,  of  course, 
gives  the  President  the  right  to  withhold  any  documents  that  he 
thinks  proper.  That  letter,  therefore,  is  not  communicated,  and 
I cannot  reason  from  it,  any  farther  than  its  contents  may  be  pre- 
sumed, from  the  intimations  in  the  letter  of  the  Spanish  minister, 
in  connection  with  the  subsequent  proceedings.  The  Secretary 
says — 

“ Washington,- January  6,  1840. 

“Sir — Your  letter  of  the  20th  ultimo  was  duly  received,  and  has 
been  laid  before  the  President.  The  Spanish  minister  having  ap- 
plied to  this  department  for  the  use  of  a vessel  of  the  United  States, 
in  the  event  of  the  decision  of  the  circuit  court  in  the  case  of  the 
Amistad  being  favorable  to  his  former  application,  to  convey  the 
negroes  to  Cuba,  for  the  purpose  of  being  delivered  over  to  the 
authorities  of  that  island,  the  President  has,  agreeably  to  your 
suggestion,  taken  in  connection  with  the  request  of  the  Spanish 
minister,  ordered  a vessel  to  be  in  readiness  to  receive  the  ne- 
groes from  the  custody  of  the  marshal  as  soon  as  their  delivery 
shall  have  been  ordered  by  the  court.” 


65 


Now,  what  could  that  suggestion  have  beenl  It  will  be  remem* 
bered  that  the  Secretary  of  State  had  before  directed  the  District 
Attorney,  Sept.  11,  ‘‘In  the  mean  time  you  will  take  care  that  no 
proceeding  of  your  circuit  court,  or  of  any  other  judicial  tribunal^ 
places  the  vessel,  cargo,  or  slaves,  beyond  the  control  of  the  Fede. 
ral  Executive .”  The  District  Attorney  had  repeatedly  inquired 
of  the  Secretary  if  they  could  not  be  disposed  of  by  an  Executive 
act,  or  before  the  court  met.  Until  this  time  he  had  received  no 
orders  from  the  Department.  From  the  intimation  now  given,  it 
is  evident  that  the  purport  of  that  suppressed  letter  was  an  inti- 
mation that  the  district  court  would  undoubtedly  deliver  them  up, 
and  the  difficulty  then  was,  how  to  get  them  out  of  the  way.  There 
might  be  a Habeas  Corpus  from  the  State  courts  at  the  moment  of 
their  delivery  to  the  Spaniards,  and  some  new  difficulties  would 
intervene.  There  must  have  been  some  such  suggestion  to  war- 
rant  or  account  for  the  subsequent  proceedings.  The  Secretary 
goes  on  to  say — 

“As  the  request  of  the  Spanish  minister  for  the  delivery  of  the 
negroes  to  the  authorities  of  Cuba  has,  for  one  of  its  objects,  that 
those  people  should  have  an  opportunity  of  proving,  before  the 
tribunals  of  the  island,  the  truth  of  the  allegations  made  in  their 
behalf  in  the  course  of  the  proceedings  before  the  circuit  court, 
that  they  are  not  slaves,  the  President,  desirous  of  affording  the 
Spanish  courts  every  facility  that  may  be  derived  from  this  coun- 
try towards  a fair  and  full  investigation  of  all  the  circumstances? 
and  particularly  of  the  allegations  referred  to  with  regard  to  the 
real  condition  of  the  negroes,  has  directed  that  Lieutenants  Ged- 
ney  and  Meade  be  directed  to  proceed  to  Cuba,  for  the  purpose  of 
giving  their  testimony  in  any  proceedings  that  may  be  instituted 
in  the  premises  ; and  that  complete  records  of  all  those  which  have 
been  had  before  the  circuit  court  of  your  district,  including  the 
‘evidence  taken  in  the  cause,  be,  with  the  same  view,  furnished  to 
the  Spanish  colonial  authorities.  In  obedience  to  this  last  men- 
tioned order,  you  will  cause  to  be  prepared  an  authentic  copy  of 
the  records  of  the  court  in  the  case,  and  of  all  the  documents  and 
evidence  connected  with  it,  so  as  to  have  it  ready  to  be  handed 
over  to  the  commander  of  the  vessel  which  is  to  take  out  the  ne- 
groes, who  will  be  instructed  as  to  the  disposition  he  is  to  make 
of  them.” 

In  every  thing  I have  said  of  the  arguments,  and  the  zeal  of  the 
-§ 


66 


Spanish  minister,  I have  admitted  that  the  principles  which  may 
be  supposed  to  govern  him  might  go  far  to  justify  the  sympathy 
he  has  shown  for  one  party  exclusively.  But  I cannot  give  the 
same  credit  for  the  sympathy  shown  by  our  own  government.  In 
this  letter  we  meet,  for  the  first  time,  something  that  might  appear 
like  sympathy  for  the  poor  wretches  whose  liberties  and  lives 
were  in  peril.  Here  is  a desire  intimated  that  they  might  go  to 
Cuba,  for  the  purpose  of  having  an  opportunity  to  prove  in  the 
courts  of  Spain  their  right  to  be  free  by  the  laws  of  Spain.  And 
the  President,  in  the  abundance  of  his  kindness,  orders  Lieutenants 
Gedney  and  Meade  to  be  sent  along  with  them,  as  witnesses  in  the 
case,  “ particularly,”  the  Secretary  says,  “ with  regard  to  the  real 
condition  of  the  negroes,”  that  is,  whether  they  were  free  or  slaves. 
But  what  did  Lieutenants  Gedney  and  Meade  know  about  that  l 
They  could  testify  to  nothing  but  the  circumstances  of  the  cap- 
ture. And  as  to  the  other  idea,  that  these  people  should  have  an 
opportunity  to  prove  their  freedom  in  Cuba,  how  could  that  be 
credited  as  a motive,  when  it  is  apparent  that,  by  sending  them 
back  in  the  capacity  of  slaves,  they  would  be  deprived  of  all  power 
to  give  evidence  at  all  in  regard  to  their  freedom  1 I cannot,  there- 
fore, give  the  Executive  credit  for  this  sympathy  towards  the  Af- 
ricans. It  was  a mere  pretence,  to  blind  the  public  mind  with  the 
idea  that  the  Africans  were  merely  sent  to  Cuba  to  prove  they 
were  not  slaves.  So  far  from  giving  any  credit  for  this  sympathy, 
the  letter  itself  furnishes  incontestible  evidence  of  a very  different 
disposition,  which  I will  not  qualify  in  words. 

Pursuing  the  case  chronologically,  according  to  the  course  of 
the  proceedings,  I now  call  the  attention  of  the  Court  to  the  opin- 
ion of  the  late  Attorney  General  of  the  United  States,  which  the 
Secretary  of  the  State  told  Mr.  Argaiz  had  been  adopted  by  the 
Cabinet,  and  which  has  been  the  foundation,  to  this  day,  of  all  the 
proceedings  of  the  Executive  in  the  case.  Before  considering 
this,  however,  1 will  advert  to  the  letter  of  Messrs.  Staples  and 
Sedgwick  to  the  President.  These  gentlemen  were  counsel  for 
those  unfortunate  men.  There  had  been  reports  in  circulation, 
which  is  by  no  means  surprising,  considering  the  course  of  the 
public  sympathy,  that  the  President  intended  to  remove  these 
people  to  Cuba,  by  force,  gubernativamente , by  virtue  of  his  Exe- 
cutive authority — that  inherent  power  which  I suppose  has  been 
discovered,  by  which  the  President,  at  his  discretion,  can  seize 


67 


men,  and  imprison  them,  and  send  them  beyond  seas  for  trial  or 
punishment  by  a foreign  power. 

Hear  Messrs.  Staples  and  Sedgwick  to  the  President  of  the 
United  States. 

“ New  York,  September  13,  1839. 

“Sir — We  have  been  engaged  as  counsel  of'the  Africans  brought 
in  by  the  Spanish  vessel,  the  Amistad;  and,  in  that  capacity,  take 
the  liberty  of  addressing  you  this  letter. 

“ These  Africans  are  now  under  indictment  in  the  circuit  court 
of  the  second  circuit,  on  a charge  of  piracy,  and  their  defence  to 
this  accusation  must  be  established  before  that  tribunal.  But  we 
are  given  to  understand,  from  authority  not  to  be  doubted,  that  a 
demand  has  already  been  made  upon  the  Federal  Government,  by 
the  Spanish  minister,  that  these  negroes  be  surrendered  to  the  au- 
thorities of  his  country;  and  it  is  on  this  account  that  we  now 
address  you. 

“ We  are  also  informed,  that  these  slaves  are  claimed  under  the 
9th  article  of  the  treaty  of  1795,  between  this  country  and  Spain 
by  which  all  ships  and  merchandise  rescued  out  of  the  hands  of 
pirates  and  robbers  on  the  high  seas  are  to  be  restored  to  the  true 
proprietor,  upon  due  and  sufficient  proof. 

“ We  now  apply  to  you,  sir,  for  the  purpose  of  requesting  that  no 
order  may  be  made  by  the  Executive  until  the  facts  necessary  to 
authorize  its  interposition  are  established  by  the  judicial  authority 
in  the  ordinary  course  of  justice.  We  submit  that  this  is  the  true 
construction  of  the  treaty;  that  it  is  not  a mere  matter  of  Execu* 
tive  discretion;  but  that,  before  the  Government  enforces  the 
demand  of  the  Spanish  claimant,  that  demand  must  be  substan. 
tinted  in  a court  of  justice. 

“ It  appears  to  us  manifest  that  the  treaty  could  never  have 
meant  to  have  submitted  conflicting  rights  of  property  to  mere 
official  discretion ; but  that  it  was  intended  to  subject  them  to  the 
same  tribunals  which,  in  all  ether  cases,  guard  and  maintain  our 
civil  rights.  Reference  to  the  7th  article,  in  our  opinion,  will  con. 
firm  this  position. 

“ It  will  he  recollected  that,  that  if  we  adopt  this  as  the  true 
construction  of  the  treaty,  should  any  occasion  ever  arise  when 
our  citizens  shall  claim  the  benefit  of  this  section,  Spain  would  be 
at  liberty  to  give  it  the  same  interpretation  ; and  that  the  rights  of 
our  citizens  will  be  subjected  to  the  control  of  subordinate  minis- 


68 


lerial  agents,  without  any  of  those  safeguards  which  courts  of  jus- 
tice present  for  the  establishment  of  truth  and  the  maintenance  of 
rights.  We  submit,  further,  that  it  never  could  be  intended  that 
the  Executive  of  the  Union  should  be  harassed  by  the  investiga- 
tion of  claims  of  this  nature,  and  yet,  assuredly,  if  the  construc- 
tion contended  for  be  correct,  such  must  be  the  result  ; for,  if  he 
is  to  issue  the  order  upon  due  and  sufficient  proof,  the  proof  must 
be  sufficient  to  his  mind. 

“ We  further  submit,  that,  in  regard  to  the  Executive,  there  are 
no  rules  of  evidence  nor  course  of  proceeding  established ; and 
that,  in  all  such  cases,  unless  the  claimant  be  directed  to  the 
courts  of  justice,  the  conduct  of  the  affair  must,  of  necessity,  be 
uncertain,  vague,  and  not  such  as  is  calculated  to  inspire  confi- 
dence in  the  public  or  the  parties.  We  can  find  nothing  in  the 
treaty  to  warrant  the  delivery  of  these  individuals  as  offenders ; 
and  the  Executive  of  the  Union  has  never  thought-itself  obliged, 
under  the  laws  of  nations,  to  accede  to  demands  of  this  nature. 

“ These  suggestions  are  of  great  force  in  this  case,  because  we, 
with  great  confidence,  assert,  that  neither  according  to  the  law  of 
this,  nor  that  of  their  own  country,  can  the  pretended  owners  of 
these  Africans  establish  any  legal  title  to  them  as  slaves. 

“ These  negroes  were,  it  is  admitted,  carried  into  Cuba  contrary 
to  the  provisions  of  the  treaty  between  Spain  and  Great  Britain  of 
1817,  and  of  the  orders  made  in  conformity  therewith  ; orders 
which  have  been  repeated,  at  different  times,  to  as  late  a date  as 
the  4th  November,  1838,  by  which  the  trade  is  expressly  prohibit- 
ed ; and  if  they  had  been  taken  on  board  the  slaver,  they  would 
have  been  unquestionably  emancipated. 

“They  were  bought  by  the  present  claimants,  Messrs.  Ruiz  and 
Montes,  either  directly  from  the  slaver,  or  under  circumstances 
which  must,  beyond  doubt,  have  apprized  them  that  they  were 
illegally  introduced  into  the  Havana;  and  on  this  state  of  facts 
we,  with  great  respect,  insist  that  the  purchasers  of  Africans  ille- 
gally introduced  into  the  dependencies  of  a country  which  has 
prohibited  the  slave  trade,  and  who  make  the  purchase  with  know- 
ledge of  this  fact,  can  acquire  no  right.  We  put  the  matter  on 
the  Spanish  law  ; and  we  affirm,  that  Messrs  Ruiz  and  Montes 
have  no  title,  under  that  law,  to  these  Africans. 

“ If  this  be  so,  then  these  negroes  have  only  obeyed  the  dictates 
of  self-defence.  They  have  liberated  themselves  from  illegal  re- 


69 


straint ; and  it  is  superfluous  to  say,  that  Messrs  Ruiz  and  Montes 
have  no  claim  whatever  under  the  treaty. 

“ It  is  this  question,  sir,  fraught  with  the  deepest  interest,  that 
we  pray  you"  to  submit  for  adjudication  to  the  tribunals  of  the 
land.  It  is  this  question  that  we  pray  may  not  be  decided  in  the 
recesses  of  the  cabinet, "where  these  unfriended  men  can  have  no 
counsel  and  can  produce  no  proof,  but  in  the  halls  of  Justice, 
with  the  safeguards  thatj  she  throws  around  the  unfriended  and 
oppressed. 

“ And,  sir,  if  you  should  not  be  satisfied  with  the  considerations 
here  presented,  we  then  submit  that  we  are  contending  for  a right 
upon  a construction  of  a treaty:  that  this  point,  at  least,  should 
be  presented  to  the  courts  of  justice  ; and,  should  you  decide  to 
grant  an  order  surrendering  these  Africans,  we  beg  that  you  will 
direct  such  notice  of  it  to  be  given,  as  may  enable  ns  to  test 
the  question  as  we  shall  be  advised,  by  habeas  corpus  or  other- 
wise. 

'■We  have  only,  sir,,  to  add,  that  we  have  perfect  confidence 
that  you  will  decide  in  this  matter  with  a single  regard  to  the 
interests  of  justice  and  the  honor  of  the  country,  and  that  we 
are,  with  the  greatest  respect,  your  most  obedient  servants, 

‘ Seth  P.  Staples, 

“ Theodore  Sedgwick,  Jr. 

“ Martin  Van  Buren,  Esq. 

“ President  of  the  United  States .” 

I read  the  whole  of  this  letter,  said  Mr.  A.,  to  show  that  this 
extraordinary  course  of  proceeding  was  not  entered  upon  by  the 
Executive  without  warning  and  counsel.  The  President  of  the 
United  States.was  informed,  on  the  receipt  of  that  letter,  in  the 
month  of  September,  1839,  of  the  deep  principles,  involving  the 
very  foundation  of  the  liberties  of  this  country,  that  were  con- 
cerned in  the  disposal  which  the  Executive  might  make  of  these 
men.  That  lettpr  was  with  the  late  Attorney  General  when  he 
examined  the  case,  and  when  he  made  up  his  opinion.  His  opinion, 
addressed  to  the  Secretary  of  State,  begins  thus: 

“ Sir, — I have  the  honor  to  acknowledge  the  receipt  of  yours  of 
the  24th  of  September,  in  which,  by  direction  of  the  President,  you 
refer  to  this  office  the  letter  of  the  Spanish  minister  of  the  6th  of 
September,  addressed  to  you  ; also  the  letter  of  Seth  P.  Staples 
and  Theodore  Sedgwick,  Jr.  Esqrs.,  who  have  been  engaged  as 


70 


counsel  for  the  negroes  taken  on  board  the  schooner  Amistad,  ad- 
dressed to  the  President  of  the  United  States;  and  asking  my  opi- 
nion upon  the  different  legal  questions  presented  by  these  papers. 

“ I have  given  to  the  subject  all  the  consideration  which  its  im- 
portance demands  ; and  now  present  to  you,  and  through  you  to 
the  President,  the  result  of  my  reflections  upon  the  whole  sub- 
ject. 

“ The  following  is  the  statement  of  facts  contained  in  your 
communication  : The  Amistad  is  a Spanish  vessel ; was  regularly 
cleared  from  Havana,  a Spanish  port  in  Cuba,  to  Guanaja,  in  the 
neighborhood  of  Puerto  Principe,  another  Spanish  port;  that  her 
papers  were  regular;  that  the  cargo  consisted  of  merchandise  and 
slaves,  and  was  duly  manifested  as  belonging  to  Don  Jose  Ruiz 
and  Don  Pedro  Montes;  that  the  negroes  after  being  at  sea  a few 
days,  rose  upon  the  white  persons  on  board  ; that  the  captain, 
his  slave  and  two  seamen,  were  killed,  and  the  vessel  taken  pos- 
session of  by  the  negroes  ; that  two  white  Spaniards,  after  being 
wounded,  were  compelled  to  assist  in  navigating  the  vessel,  the 
negroes  intending  to  carry  her  to  the  coast  of  Africa;  that  the 
Spaniards  contrived,  by  altering  the  course  of  steering  at  night, 
to  keep  her  on  the  coast  of  the  United  States  ; that  on  seeing 
land  off  New-York,  they  came  to  the  coast,  and  some  of  the  ne- 
groes landed  to  procure  water  and  provisions  ; that  being  on  the 
point  of  leaving  the  coast,  the  Amistad  was  visited  by  a boat  from 
Captain  Gedney’s  vessel,  and  that  one  of  the  Spaniards,  claiming 
protection  from  the  officer  commanding  the  boat,  the  vessel  and 
cargo,  and  all  the  persons  on  board,  were  sent  into  New  London 
for  examination,  and  such  proceedings  as  the  laws  of  nations  and 
of  the  United  States  warranted  and  required.” 

Here  the  Court  will  see  he  assumes,  through  the  whole  argument, 
that  these  negroes  were  slaves.  This  corresponds  with  the  as- 
sumption of  the  Executive,  which  Mr.  Forsyth,  in  his  letter  to 
the  Spanish  minister  afterwards  declared  the  Government  had 
carried  out,  that  the  negroes  were  slaves,  and  that  the  only  parties 
injured  were  Montes  and  Ruiz.  The  late  Attorney  General  says 
it  appears  that  the  “ cargo  consisted  of  merchandise  and  slaves,” 
that  the  papers  w'ere  “ all  regular,”  that  after  the  capture  of  the 
vessel  by  the  negroes,  the  two  white  Spaniards  “ were  compelled 
to  assist  in  navigating  the  vessel,  the  negroes  intending  to  carry 
her  to  the  coast  of  Africa,”  but  “ the  Spaniards  contrived , by 


7i 


altering  the  course  of  steering  at  night,  to  bring  her  to  the  United 
States.”  This  last  is  an  admission  of  some  importance,  as  the 
Court  will  easily  see,  in  deciding  upon  the  character  of  the  voy- 
age which  the  vessel  was  pursuing  when  taken  by  Lieutenant 
Gedney.  He  proceeds  to  say: 

In  the  intercourse  and  transactions  between  nations,  it  has  been 
found  indispensable  that  due  faith  and  credit  should  be  given  by 
each  to  the  official  acts  of  the  public  functionaries  of  others. 
Hence  the  sentences  of  prize  courts  under  the  laws  of  nations,  or 
admiralty,  and  exchequer  or  other  revenue  courts,  under  the  mu- 
nicipal law,  are  considered  as  conclusive  as  to  the  proprietary 
interest  in,  and  title  to,  the  things  in  question ; nor  can  the  same 
be  examined  into  in  the  judicial  tribunals  of  another  country. 
Nor  is  this  confined  to  judicial  proceedings!  The  acts  of  other 
officers  of  a foreign  nation,  in  the  discharge  of  their  ordinary  du- 
ties, are  entitled  to  the  like  respect.  And  the  principle  seems  to 
be  universally  admitted,  that,  whenever  power  or  jurisdiction  is 
delegated  to  any  public  officer  or  tribunal,  and  its  exercise  is  con- 
fided to  his  or  their  discretion,  the  acts  done  in  the  exercise  of 
that  discretion,  and  within  the  authority  conferred,  are  binding  as 
to  the  subject  matter  ; and  this  is  true,  whether  the  officer  or 
tribunal  be  legislative,  executive,  judicial,  or  special. — Wheaton's 
Elements  of  International  Law , page  121  ; 6th  Peter's , page  729.” 

There  is  the  basis  of  his  opinion  \ that  the  comity  of  nations 
requires,  that  such  a paper,  signed  by  the  Governor  General  of 
Cuba,  is  conclusive  to  all  the  world  as  a title  to  property.  If  the 
life  and  liberty  of  men  depends  on  any  question  arising  out  of 
these  papers,  neither  the  courts  of  this  country  nor  of  any  other 
can  examine  the  subject,  or  go  behind  this  paper.  In  point  of 
fact,  the  voyage  of  the  Amistad,  for  which  these  papers  were 
given,  was  but  the  continuation  of  the  voyage  of  the  slave  trader, 
and  marked  with  the  horrible  features  of  the  middle  passage. 
That  is  the  fact  in  the  case,  but  this  government  and  the  courts 
of  this  country  cannot  notice  that  fact,  because  they  must  not  go 
behind  that  document.  The  Executive  may  send  the  men  to 
Cuba,  to  be  sold  as  slaves,  to  be  put  to  death,  to  be  burnt  at  the 
stake,  but  they  must  not  go  behind  this  document,  to  inquire  into 
any  facts  of  the  case.  That  is  the  essence  of  the  whole  argument 
of  tile  late  Attorney-General.  At  a subsequent  part  of  my  argu- 
ment I shall  examine  this  document,  and  I undertake  to  show 


n 


that  it  is1  not  even  valid  for  what  it  purports  to  be,  and  that  as  a 
passport  it  bears  on  its  face  the  insignia  of  imposture.  But  at 
present  I will  only  observe  that  it  is  a most  unheard-of  thing,  that 
in  a question  of  property,  a passport  should  be  supposed  to  give  a 
valid  title;  Papers  of  foreign  courts  and  functionaries  are  to  be 
credited  for  that  which  they  intend  to  do.  A passport,  if  it  is 
regular;  is  to  be  credited  as  a passport.  But  when  was  it  ever 
supposed  that  a passport  stating  what  a person  carries  with  him 
is  evidence  of  his  property  in  that  which  is  described  ? All  the 
decisions  of  this  court  agree  that  foreign  papers  are  good  only 
for  that  which  they  propose  and  purport,  but  not  as  evidence  of 
property.  And  yet  the  opinion  of  the  late  Attorney-General  rests 
on  that  ground.  In  a case  involving  the  lives  and  liberties  of  a 
large  number  of  men,  he  has  not  a word  to  say  of  the  principles 
of  justice  or  humanity  concerned,  but  goes  entirely  on  the  force  of 
this  document,  on  the  ground  that  we  cannot  go  behind  the  cer« 
tificate  of  the  Spanish  Captain  General.  He  says  : 

“ Were  this  otherwise,  all  confidence  and  comity  would  cease 
to  exist  among  nations  ; and  that  code  of  international  law,  which 
now  contributes  so  much  to  the  peace,  prosperity,  and  harmony 
of  the  world,  would  no  longer  regulate  and  control  the  conduct  of 
nations.” 

This  principle  of  national  comity , I have  no  desire  to  contest,  so 
far  as  it  is  applicable  to  this  case.  The  Attorney  says  : — 

“ In  the  case  of  the  Antelope,  (10  Wheaton,  page  66,)  this  sub- 
ject was  fully  examined,  and  the  opinion  of  the  Supreme  Court  of 
the  United  States  establishes  the  following  points: — 

“ 1.  That,  however  unjust  and  unnatural  the  slave  trade  may 
be,  it  is  not  contrary  to  the  law  of  nations. 

“ 2.  That,  having  been  sanctioned  by  the  usage  and  consent  of 
almost  all  civilized  nations,  it  could  not  be  pronounced  illegal, 
except  so  far  as  each  nation  may  have  made  it  so  by  its  own  acts 
or  laws  ; and  these  could  only  operate  upon  itself,  its  own  subjects 
or  citizens;  and,  of  course,  the  trade  would  remain  lawful  to 
those  whose  Government  had  not  forbidden  it. 

“ 3.  That  the  right  of  bringing  in  and  adjudicating  upon  the 
case  of  a vessel  charged  with  being  engaged  in  the  slave  trade, 
even  where  the  vessel  belongs  to  a nation  which  has  prohibited 
the  trade,  cannot  exist.  The  courts  of  no  country  execute  the 
penal  laws  of  another,  and  the  course  of  the  American  Govern- 


73 


ment  on  the  subject  of  visitation  and  search  would  decide  any 
case  in  which  that  right  had  been  exercised  by  an  American  crui- 
ser, on  the  vessel  of  a foreign  nation  not  violating  our  municipal 
laws,  against  the  captors. 

“ It  follows,  that  a foreign  vessel  engaged  in  the  African  slave 
trade,  captured  on  the  high  seas  in  time  of  peace,  by  an  American 
cruiser,  and  brought  in  for  adjudication,  would  be  restored. 

“ The  opinions  here  expressed  go  far  beyond  the  present  case  j 
they  embrace  cases  where  the  negroes  never  have  been  within  the 
territorial  limits  of  the  nation  of  which  the  claimant  is  a citizen.” 

Here  reference  is  made  to  the  case  of  the  Antelope,  in  10 
Wheaton,  to  which  I shall  hereafter  solicit  the  particular  attention 
of  the  Court,  as  I purpose  to  examine  it  in  great  detail,  as  to  all 
the  principles  that  have  been  supposed  to  be  decided  by  that  case, 
and  especially  on  the  point  here  alluded  to,  concerning  which 
Chief  Justice  Marshall  says  that  the  Court  was  divided,  therefore 
no  principle  is  decided.  That  was  the  most  solemn  and  awful  deci- 
sion that  ever  was  given  by  any  Court.  The  Judges  did  not 
deliver  their  opinions  for  publication,  or  the  reasons,  because  the 
court  was  divided.  This  case  is  laid  at  the  foundation  of  the  argu- 
ment or  opinion  of  the  Attorney-General  on  which  this  whole  pro- 
ceeding is  based,  and  it  is  appealed  to  in  all  the  discussions  as 
authority  against  the  rights  of  these  unfortunate  people.  I shall, 
therefore,  feel  it  to  be  my  duty  to  examine  it  to  the  bottom. 

The  second  principle  drawn  by  the  late  Attorney  General,  if 
he  had  reasoned  on  the  subject  as  men  ought  to  reason,  is  in  fa- 
vor of  the  claims  of  the  Africans.  The  Antelope  was  engaged  in 
the  slave  trade  south  of  the  Line,  where  it  was  not  then  prohibited 
by  the  laws  of  Spain.  The  decision  of  the  Supreme  Court,  such  as 
it  was,  was  in  affirmance  of  the  decree  of  the  court  below.  Judge 
Davies,  in  the  District  Court  of  Georgia,  and  Judge  Johnson,  of 
the  Circuit  Court,  said  that,  if  the  slave  trade  had  at  that  time  been 
abolished  by  Spain,  their  decision  would  have  been  otherwise. 
That  trade  is  now  abolished  by  Spain. 

The  late  Attorney  General  says  “ the  courts  of  no  country  exe- 
cute the  penal  laws  of  another.”  I may  ask,  does  any  nation  exe- 
cute the  slave  laws  of  another  country?  Is  not  the  slave  sys- 
tem, the  Code  Noir,  as  peculiar  as  the  revenue  system  or  the 
criminal  code?  These  men  were  found  free,  and  they  cannot 
now  be  decreed  to  be  slaves,  but  by  making  them  slaves.  By 
10 


74 


what  authority  will  this  court  undertake  to  do  this  1 What 
right  has  Ruiz  to  claim  these  men  as  his  property,  when  they 
were  free,  and  so  far  from  being  in  his  possession  when  taken,  he 
was  in  theirs.  If  there  is  no  right  of  visitation  and  search  by  the 
cruisers  of  one  nation  over  those  of  another,  by  what  right  has 
this  ship  been  taken  from  the  men  who  had  it  in  their  posses- 
sion! The  captors  in  this  case,  are  Gedneyand  Meade,  the  own- 
ers are  the  Africans.  The  Attorney  says, 

“ This  vessel  was  not  engaged  in  the  slave  trade  ; she  was  em- 
ployed lawfully  in  removing  these  negroes,  as  slaves,  from  one 
part  of  the  Spanish  dominions  to  another,  precisely  in  the  same 
way  that  slaves  are,  removed,  by  sea,  from  one  slave  State  to  an- 
other in  our  own  country.  I consider  the  facts  as  stated,  so  far 
as  this  government  is  concerned,  as  establishing  a right  of  owner- 
ship to  the  negroes  in  question,  in  the  persons  in  whose  behalf 
the  minister  of  Spain  has  made  a demand  upon  the  government 
of  the  U.  States.” 

Now,  here  I take  issue  The  vessel  was  engaged  in  the  slave 
trade.  The  voyage  in  the  Amistad  was  a mere  continuation  of 
the  original  voyage  in  the  Tecora.  The  voyage  in  its  original  in- 
tention was  not  accomplished  until  the  slaves  had  reached  their 
final  destination  on  the  plantation.  This  is  the  principle  univer- 
sally applicable  to  coasting  vessels.  I say  further,  that  the  ob- 
ject of  Ruiz  and  Montes  was  illegal,  it  was  a part  of  the  voyage  from 
Lomboko,  and  when  they  fell  into  the  hands  of  Lieutenant  Ged- 
ney,  they  were  steering  in  pursuance  of  that  original  voyage. 
Their  object  was  to  get  to  Porto  Principe,  and  of  course  the  voyage 
was  to  them  an  unlawful  one.  The  object  of  the  Africans  was  to 
get  to  a port  in  Africa,  and  their  voyage  was  lawful.  And  the 
whole  character  of  the  affair  was  changed  by  the  transactions 
that  took  place  on  board  of  the  ship.  The  late  Attorney,  how- 
ever, comes  to  the  conclusion  that  the  courts  of  the  United  States 
cannot  proceed  criminally  against  these  people,  that  the  provi- 
sions of  the  Acts  of  Congress  against  the  slave  trade  are  not  ap- 
plicable to  Ruiz  and  Montes,  and  so  he  recurs  to  the  9th  Article 
of  the  Treaty  of  1795.  I have  nothing  to  add  to  what  I have  be- 
fore said  respecting  the  treaty.  It  can  have  no  possible  applica- 
tion in  this  case. 

The  late  Attorney  General  now  comes  to  a conclusion  as  to 
what  is  to  be  done — a conclusion  which  it  is  not  in  my  power  to 


75 


read  to  the  Court  without  astonishment,  that  such  an  opinion 
should  ever  have  been  maintained  by  an  Attorney  General  of  the 
United  States. 

“My  opinion  further  is,  that  the  proper  mode  of  executing  this 
article  of  treaty,  in  the  present  case,  would  be  for  the  President 
of  the  United  States  to  issue  his  order,  directed  to  the  Marshal  in 
whose  custody  the  vessel  and  cargo  are,  to  deliver  the  same  to 
such  persons  as  may  be  designated  by  the  Spanish  minister  to  re 
ceive  them.  The  reasons  which  operate  in  favor  of  a delivery  to 
the  order  of  the  Spanish  minister  are — 

“1.  The  owners  of  the  vessel  and  cargo  are  not  all  in  this 
country,  and,  of  course,  a delivery  cannot  be  made  to  them. 

‘ 2.  This  has  become  a subject  of  discussion  between  the  two 
Governments,  and,  in  such  a case,  the  restoration  should  be  made 
to  that  agent  of  the  Government  who  is  authorized  to  make,  and 
through  whom  the  demand  is  made. 

“ 3.  These  negroes  are  charged  with  an  infraction  of  the  Span- 
ish laws  ; therefore,  it  is  proper  that  they  should  be  surrendered 
to  the  public  functionaries  of  that  Government,  that  if  the  laws  of 
Spain  have  been  violated,  they  may  not  escape  punishment. 

“ 4.  These  negroes  deny  that  they  are  slaves  ; if  they  should 
be  delivered  to  the  claimaints,  no  opportunity  may  be  afforded  for 
the  assertion  of  their  right  to  freedom.  For  these  reasons,  it 
seems  to  me  that  a delivery  to  the  Spanish  minister  is  the  only 
safe  course  for  this  Government  to  pursue.” 

That  is  the  opinion,  which  the  Secretary  of  State  told  the  Span* 
ish  minister  the  American  Cabinet  had  adopted ! That  these 
MEN,  being  at  that  time  in  judicial  custody  of  the  Court  of  the 
United  States,  should  be  taken  out  of  ' that  custody,  under  an  or- 
der of  the  President,  and  sent  beyond  seas  by  his  sole  authority  ! 
The  Cabinet  adopted  that  opinion  ; why,  then,  did  they  not  act 
upon  it  1 Why  did  not  the  President  send  his  order  to  the  Mar- 
shal to  seize  these  men,  and  ship  them  to  Cuba,  or  deliver  them 
to  the  order  of  the  Spanish  Minister  1 I am  ashamed  ! I am 
ashamed  that  such  an  opinion  should  ever  have  been  delivered  by 
any  public  officer  of  this  country,  executive  or  judicial.  I am 
ashamed  to  stand  up  before  the  nations  of  the  earth,  with  such  an 
opinion  recorded  as  official,  and  what  is  worse,  as  having  been 
adopted  by  the  government an  opinion  sanctioning  a particu- 
lar course  of  proceeding,  unprecedented  among  civilized  court- 


76 


tries,  which  was  thus  officially  sanctioned,  and  yet  the  govern- 
ment did  not  dare  to  do  it.  Why  did  they  not  do  it  l If  this 
opinion  had  been  carried  into  effect,  it  would  have  settled  the 
matter  at  once,  so  far  as  it  related  to  these  unfortunate  men. 
They  would  have  been  wrested  from  that  protection,  which  above 
all  things  was  their  due  after  they  had  been  taken  into  custody  by 
order  of  the  Court,  and  would  have  , been  put  into  the  power  of 
“ public  vengeance”  at  Havana.  Yet  there  was  not  enough. 
There  seems  to  have  been  an  impression  that  to  serve  an  order 
like  that  would  require  the  aid  of  a body  of  troops. — The  people 
of  Connecticut  never  would,  never  ought  to  have  suffered  it  to  be 
executed  on  their  soil,  but  by  main  force.  So  the  Spanish  minis- 
ter says  his  government  has  no  ship  to  receive  these  people,  and 
the  President  must  therefore  go  further,  and  as  he  is  responsible 
for  the  safe-keeping  and  delivery  of  the  men,  he  must  not  only  de- 
liver them  up,  but  ship  them  off  in  a national  vessel,  so  that  there 
may  be  no  Habeas  Corpus  from  the  State  Courts  coming  to  the 
rescue  as  soon  as  they  are  out  of  the  control  of  the  judiciary. 
The  suggestion,  which  first  came  from  the  District  Attorney,  that 
the  Court  would  undoubtedly  place  the  Africans  at  the  mercy  of 
the  Executive,  is  carried  out  by  an  announcement  from  the  Sec- 
retary of  State,  of  an  agreement  with  Mr.  Argaiz  to  send  them  to 
Cuba  in  a public  ship.  Here  is  the  memorandum  of  the  Secreta- 
ry of  State  to  the  Secretary  of  the  Navy. 

“ Department  of  State,  January  2,  1S40. 

“The  vessel  destined  to  convey  the  negroes  of  the  Amistad  to 
Cuba,  to  be  ordered  to  anchor  off  the  port  of  New  Haven,  Con- 
necticut, as  early  as  the  10th  of  January  next,  and  be  in  readiness 
to  receive  said  negroes  from  the  marshal  of  the  United  States,  and 
proceed  with  them  to  Havana,  under  instructions  to  be  hereafter 
transmitted. 

“ Lieutenant  Gedney  and  Meade  to  be  ordered  to  hold  them- 
selves in  readiness  to  proceed  in  the  same  vessel,  for  the  purpose 
of  affording  their  testimony  in  any  proceedings  that  may  be  or- 
dered by  the  authorities  of  Cuba  in  the  matter. 

“ These  orders  should  be  given  with  special  instructions  that 
they  are  not  to  be  communicated  to  any  one.” 

Well,  the  order  was  given  by  the  Secretary  of  the  Navy,  that 
the  schooner  Grampus  should  execute  this  honorable  service. 


77 


The  Secretary  of  the  Navy  to  the  Secretary  of  State. 

“Navy  Department,  Jan.  2,  1840. 

“ Sir, — I have  the  honor  to  state  that,  in  pursuance  of  the  me' 
morandum  sent  by  you  to  this  department,  the  United  States 
schooner  Grampus,  Lieutenant  Commanding  John  S.  Paine,  has 
been  ordered  to  proceed  to  the  bay  of  New  Haven,  to  receive 
the  negroes  captured  in  the  Amistad.  The  Grampus  will  proba- 
bly be  at  the  point  designated  a day  or  two  before  the  10th  inst., 
and  will  there  await  her  final  instructions  in  regard  to  the  ne- 
groes.” 

A celebrated  state  prisoner,  when  going  to  the  scaffold,  was 
led  by  the  statue  of  Liberty,  and  exclaimed,  “ O,  Liberty ! how 
many  crimes  are  committed  in  thy  name  !”  So  we  may  say  of 
our  gallant  navy,  “What  crimes  is  it  ordered  to  commit!  To 
what  uses  is  it  ordered  to  be  degraded!” 

On  the  7th  of  January,  the  Secretary  of  State  writes  to  the 
Secretary  of  the  Navy,  acknowledging  the  receipt  of  his  letter 
of  the  3d,  informing  him  that  the  schooner  Grampus  would  re- 
ceive the  negroes  of  the  Amistad,  “ for  the  purpose  of  conveying 
them  to  Cuba,  in  the  event  of  their  delivery  being  adjudged  by 
the  circuit  court,  before  whom  the  case  is  pending.”  This  sin- 
gular blunder,  in  naming  the  court,  shows  in  what  manner  and 
with  how  little  care  the  Department  of  State  allowed  itself  to 
conduct  an  affair,  involving  no  less  than  the  liberties  and  lives  of 
every  one  of  my  clients.  This  letter  inclosed  the  order  of  the 
President  to  the  Marshal  of  Connecticut  for  the  delivery  of  the 
negroes  to  Lieut.  Paine.  Although  disposing  of  the  lives  of  Jorty 
human  beings,  it  has  not  the  form  or  solemnity  of  a warrant,  and 
is  not  even  signed  by  the  President  in  his  official  capacity.  It  is 
a mere  order. 

“The  Marshal  of  the  United  States  for  the  district  of  Connec- 
ticut will  deliver  over  to  Lieut.  John  S,  Paine,  of  the  United 
States  Navy,  and  aid  in  conveying  on  board  the  schooner  Gram- 
pus, under  his  command,  all  the  negroes,  late  of  the  Spanish 
schooner  Amistad,  in  his  custody,  under  process  now  pending 
before  the  Circuit  court  of  the  United  States  for  the  district  of 
Connecticut.  For  so  doing,  this  order  will  be  his  warrant. 

“Given  under  my  hand,  at  the  city  of  Washington,  this  7th  day 
of  January,  A.  D.  1840.  “M.  Van  Buren. 

“ By  the  President : 

“John  Forsyth.  Sec,  of  State.’5 


78 


That  order  is  good  for  nothing  at  all.  It  did  not  even  describe 
the  court  correctly,  under  whose  protection  these  unfortunate 
people  were.  And  on  the  11th  of  January,  the  District  Attorney 
had  to  send  a special  messenger,  who  came,  it  appears,  all  the 
way  to  Washington  in  one  day,  to  inform  the  Secretary  that  the 
negroes  were  not  holden  under  the  order  of  the  Circuit  Court 
but  of  the  District  Court.  And  he  says,  “ Should  the  pretended 
friends  of  the  negroes” — the  pretended  friends! — “obtain  a writ 
of  Habeas  Corpus , the  Marshal  could  not  justify  under  that  war- 
rant.” And  he  says,  “ the  Marshal  wishes  me  to  inquire” — a 
most  amiable  and  benevolent  inquiry — “ whether  in  the  event  of 
a decree  requiring  him  to  release  the  negroes,  or  in  case  of  an  ap- 
peal by  the  adverse  party,  it  is  expected  the  Executive  warrant  will 
be  executed” — that  is,  whether  he  is  to  carry  the  negroes  on 
board  of  the  Grampus  in  the  face  of  a decree  of  the  court.  And 
he  requests  instructions  on  the  point.  What  a pretty  thing  it 
would  have  been,  if  he  had  received  such  instructions,  in  the  face 
of  a decree  of  the  court ! I should  like  to  ask  him  which  he 
would  have  obeyed.  At  least,  it  appears,  he  had  such  doubts 
whether  he  should  obey  the  decree  of  the  court,  that  he  wanted 
instructions  from  the  President.  I will  not  say  what  temper  it 
shows  in  the  Marshal  and  the  District  Attorney. 

On  the  12th  of  January,  the  very  next  day  after  the  letter  of  the 
District  Attorney  was  written  at  New  Haven,  the  Secretary  of 
State  replies  in  a dispatch  which  is  marked  “ confidential.” 

“[confidential.] 

“ Department  of  State,  Jan.  12,  1840. 

“ Sir, — Your  letter  of  the  11th  instant  has  just  been  received. 
The  order  for  the  delivery  of  the  negroes  of  the  Amistad  is  here 
with  returned,  corrected  agreeably  to  your  suggestion.  With 
reference  to  the  inquiry  from  the  Marshal,  to  which  you  allude,  I 
have  to  state,  by  direction  of  the  President,  that,  if  the  decision 
of  the  court  is  such  as  is  anticipated,  the  order  of  the  President 
is  to  be  carried  into  execution,  unless  an  appeal  shall  actually 
have  been  interposed.  You  are  not  to  take  it  for  granted  that  it 
will  be  interposed.  And  if,  on  the  contrary,  the  decision  of  the 
court  is  different,  you  are  to  take  out  an  appeal,  and  allow  things 
to  remain  as  they  are  until  the  appeal  shall  have  been  decided. 

“ I am,  sir,  your  obedient  servant, 

“John  Forsyth, 

“W.  S.  Holabird,  Esq., 

“ .Attorney  U S.for  Dist.  of  Conn  " 


79 


Now,  may  it  please  your  Honors,  this  corrected  order,  the 
final  order  of  the  President  of  the  United  States,  is  not  in  evi- 
dence, it  does  not  appear  among  the  documents  communicated  to 
Congress,  and  I feel  some  curiosity  to  know  how  it  was  corrected. 

I have  heard  it  intimated  that  the  President  of  the  United  States 
never  knew  it  had  been  changed,  and  that  the  alternative  was 
made,  perhaps  by  a clerk  in  the  State  Department,  just  by  draw- 
ing his  pen  through  the  word  circuit,  and  interlining  the  word 
district.  I put  it  to  your  Honors  to  say  what  sort  of  regard  is  here 
exhibited  for  human  life  and  for  the  liberties  of  these  people. 
Did  not  the  President  know,  when  he  signed  that  order  for  the 
delivery  of  MEN  to  the  control  of  an  officer  of  the  navy  to  be 
carried  beyond  seas,  he  was  assuming  a power  that  no  President 
had  ever  assumed  before  1 It  is  questionable  whether  such  a 
power  could  have  been  exercised  by  the  most  despotic  govern- 
ment of  Europe.  Yet  this  business  was  coolly  dispatched  by  a 
mere  informal  order,  which  order  was  afterwards  altered  by  a 
clerk. 

The  Secretary  of  State  further  instructs  the  District  Attorney, 
that  “ if  the  decision  of  the  Court  shall  be  such  as  is  anticipated , the 
order  of  the  President  is  to  be  carried  into  execution,  unless  an 
appeal  is  actually  interposed,”  and  he  is  “ NOT  TO  TAKE  IT 
FOR  GRANTED  THAT  IT  WILL  BE  INTERPOSED.”  The 
Government  then  confidently  “anticipated”  that  the  negroes 
would  be  delivered  up  ; and  the  Attorney  was  directed  not  to  al- 
low them  a moment  of  time  to  enter  an  appeal.  They  were  to 
be  put  on  board  of  the  Grampus  instantly,  and  deprived,  if  possible, 
of  the  privilege  of  appealing  to  the  higher  Courts.  Was  this 
JUSTICE  ? 

But  after  all,  the  order  did  not  avail.  The  District  Judge,  con- 
trary to  all  these  anticipations  of  the  Executive,  decided  that  the 
thirty-six  negroes  taken  by  Lieut.  Gedney  and  brought  before  the 
Court  on  the  certificate  of  the  Governor  General  of  Cuba,  were 
FREEMEN  ; that  they  had  been  kidnapped  in  Africa  ; that  they 
did  not  own  these  Spanish  names  ; that  they  were  not  ladinos,  and 
were  not  correctly  described  in  the  passport,  but  were  new  negroes 
bought  by  Ruiz  in  the  depot  of  Havana,  and  fully  entitled  to  their 
liberty. 

Such  was  the  disposal  intended,  deliberately  intended,  by  a Pre 
sident  of  the  United  States  to  be  made,  of  the  lives  and  liberty  of 


80 


thirty-six  human  beings  ! — The  Attorney  General  of  the  United 
States,  at  once  an  Executive  and  a judicial  officer  of  the  American 
people,  bound  in  more  than  official  duty  to  respect  the  right  of 
personal  liberty  and  the  authority  of  the  Judiciary  Depart- 
ment had  given  a written  opinion,  that,  at  the  instigation  of  a fo- 
reign minister,  the  President  of  the  United  States  should  issue  his 
order,  directed  to  the  marshal  to  whose  custody  these  persons  had 
been  committed,  by  order  of  the  judge,  as  prisoners  and  witnesses , 
and  commanding  that  marshal  to  wrest  them  from  the  hands  of 
justice,  and  deliver  them  to  such  persons  as  should  be  designated 
by  that  same  foreign  minister  to  receive  tthem.  Will  this  Court 
please  to  consider  for  one  moment,  the  essential  principle  of  that 
opinion  ? Will  this  Court  inquire,  what,  if  that  opinion  had  been 
successfully  carried  into  execution,  would  have  been  the  tenure 
by  which  every  human  being  in  this  Union,  man,  woman,  or  child, 
would  have  held  the  blessing  of  personal  freedom  1 Would  it 
not  have  been  by  the  tenure  of  Executive  discretion,  caprice  or 
tyranny  1 Had  the  precedent  once  been  set  and  submitted  to,  of 
a nameless  mass  of  judicial  prisoners  and  witnesses,  snatched  by 
Executive  grasp  from  the  protective  guardianship  of  the  Supreme 
Judges  of  the  land,  ( gubernativamente ,)  at  the  dictate  of  a foreign 
minister,  would  it  not  have  disabled  foreverthe  effective  power  of 
the  Habeas  Corpus  1 Well  was  it  for  the  country — well  was  it 
for  the  President  of  the  United  States  himself  that  he  paused 
before  stepping  over  this  Rubicon! — That  he  said — “We  will 
proceed  no  further  in  this  business.”  And  yet,  he  did  not  discard 
the  purpose,  and  yet  he  saw  that  this  executive  trampling  at  once 
upon  the  judicial  authority  and  upon  personal  liberty  would  not 
suffice,  either  to  satisfy  the  Spanish  Minister  or  to  satiate  the  pub- 
lic vengeance  of  the  barracoon  slave-traders.  Had  the  unfortu- 
nate Africans  been  torn  away  from  the  protection  of  the  Court, 
and  delivered  up  to  the  order  of  the  Spanish  Minister,  he  possessed 
not  the  means  of  shipping  them  off  to  the  Island  of  Cuba.  The 
indignation  of  the  freemen  of  Connecticut,  might  not  tamely  en- 
dure the  sight,  of  thirty-six  free  persons,  though  Africans,  fettered 
and  manacled  in  their  land  of  freedom,  to  be  transported  beyond 
the  seas,  to  perpetual  hereditary  servitude  or  to  death,  by  the  ser- 
vile submission  of  an  American  President  to  the  insolent  dictation 
of  a foreign  minister.  There  were  judges  of  the  State  Courts  in 
Connecticut,  possessing  the  power  of  issuing  the  writ  of  Habeas 


SI 


Corpus,  paramount  even  to  the  obsequiousness  of  a federal  mar- 
shal to  an  Executive  mandate.  The  opinion  of  the  Attorney  Ge- 
neral, comprehensive  as  it  was  for  the  annihilation  of  personal 
liberty,  carried  not  with  it  the  means  of  accomplishing  its  object. 
What  then  was  to  be  done  1 To  save  the  appearance  of  a violent 
and  shameless  outrage  upon  the  authority  of  the  judicial  courts, 
the  moment  was  to  be  watched  when  the  Judge  of  the  District 
Court  should  issue  his  decree,  which  it  was  anticipated  would  be 
conformable  to  the  written  opinion  of  the  Attorney  General.  From 
that  decree  the  Africans  would  be  entitled  to  an  appeal,  first  to 
the  Circuit  and  eventually  to  the  Supreme  Court  of  the  United 
States — -but  with  suitable  management,  by  one  and  the  same  ope- 
rations they  might  be  choused  out  of  that  right,  the  Circuit  and 
Supreme  Courts  ousted  of  their  jurisdiction,  and  the  hapless  cap- 
tives of  the  Amistad  delivered  over  to  slavery  and  to  death. 

For  this  purpose,  at  the  suggestion  of  the  District  Attorney 
Holabird,  and  at  the  requisition  of  the  dictatorial  Spanish  Minister, 
the  Grampus,  one  of  the  smallest  public  vessels  of  the  United 
States,  a schooner  of  burden  utterly  insufficient  to  receive  and 
contain  under  the  shelter  of  her  maindeck,  thirty-six  persons 
additional  to  the  ship’s  company,  was  in  the  dead  of  winter,  order- 
ed to  repair  from  the  navy  yard  at  Brooklyn  to  New  Haven  where 
the  Africans  were  upon  trial,  with  this  secret  order  which  I have 
read  to  the  Court,  signed  “Martin  Van  Buren,”  commanding  the 
Marshal  of  the  District  of  Connecticut  to  deliver  over  to  Lieut. 
John  S.  Paine,  commander  of  the  Grampus,  and  aid  in  conveying 
on  board  that  schooner  all  the  negroes,  late  of  the  Spanish  schooner 
Amistad,  in  his  custody,  under  process  [ now\  pending  before  the 
Circuit  Court  of  the  United  States  for  the  District  of  Connecticut. 

Of  this  ever  memorable  order,  this  Court  will  please  to  observe 
that  it  is  in  form  and  phraseology,  perfectly  conformable  to  the 
written  opinion  which  had  been  given  by  the  Attorney  General. 
It  is  not  conditional , to  be  executed  only  in  the  event  of  a deci- 
sion by  the  court  against  the  Africans,  but  positive  and  unqualified 
to  deliver  up  all  the  Africans  in  his  custody,  under  process  now 
pending.  There  was  nothing  in  the  order  itself  to  prevent  Lieut. 
Paine  from  delivering  it  to  the  marshal,  while  the  trial  was  pend- 
ing; it  carries  out  in  form  the  whole  idea  of  the  Attorney  Gene- 
ral’s opinion,  that  the  President’s  order  to  the  marshal  is  of  itself 
all  sufficient  to  supersede  the  whole  protective  authority  of  the 
11 


judiciary — and  with  this  pretension  on  the  face  of  the  order,  is 
associated  another,  if  possible  still  more  outrageous  upon  every 
security  to  personal  liberty,  in  the  direction  to  the  marshal  to  de- 
liver over  to  Lieut.  Paine  all  the  negroes,  late  of  the  Amistad, 
under  his  custody. 

Is  it  possible  that  a President  of  the  United  States  should  be 
ignorant  that  the  right  of  personal  liberty  is  individual.  That  the 
right  to  it  of  every  one,  is  his  own — jus  suum  ; and  that  no  greater 
violation  of  his  official  oath  to  protect  and  defend  the  Constitu- 
tion of  the  United  States,  could  be  committed,  than  by  an  order 
to  seize  and  deliver  up  at  a foreign  minister’s  demand,  thirty-six 
persons,  in  a mass,  under  the  general  denomination  of  all,  the 
negroes,  late  of  the  Amistad.  That  he  was  ignorant,  profoundly 
ignorant  of  this  self-evident  truth,  inextinguishable  till  yonder  gilt 
framed  Declarations  of  Independence  shall  perish  in  the  general 
conflagration  of  the  great  globe  itself.  I am  constrained  to  be- 
lieve— for  to  that  ignorance,  the  only  alternative  to  account  for 
this  order  to  the  Marshal  of  the  District  of  Connecticut,  is  wilful 
and  corrupt  perjury  to  his  official  presidential  oath. 

But  ignorant  or  regardless  as  the  President  of  the  United  States 
might  be  of  the  self-evident  principles  of  human  rights,  he  was 
bound  to  know  that  he  could  not  lawfully  direct  the  delivery  up  to 
a foreign  minister,  even  of  slaves,  of  acknowledged  undisputed 
slaves,  in  an  undefined,  unspecified  number.  That  the  number 
must  be  defined,  and  individuals  specifically  designated,  had  been 
expressly  decreed  by  the  Supreme  Court  of  the  United  States  in 
that  very  case  of  the  Antelope  so  often,  and  as  I shall  demon- 
strate so  erroneously  quoted  as  a precedent  for  the  captives  of  the 
Amistad. 

“ Whatever  doubts  (said  in  that  case  Chief  Justice  Marshall) 
may  attend  the  question  whether  the  Spanish  claimants  are  entit- 
led to  restitution  of  all  the  Africans  taken  out  of  their  possession 
with  the  Antelope  we  cannot  doubt  the  propriety  of  demanding 
ample  proof  of  the  extent  of  that  possession.  Every  legal  principle 
which  requires  the  plaintiff  to  prove  his  claim  in  any  case,  applies 
with  full  force  to  this  point ; and  no  countervailing  consideration 
exists.  The  onus  probandi,  as  to  the  number  of  Africans  which 
were  on  board,  when  the  vessel  was  captured,  unquestionably  lies 
on  the  Spanish  libellants.  Their  proof  is  not  satisfactory  beyond 
93.  The  individuals  who  compose  this  number  must  be  designated 


83 


to  the  satisfaction  of  the  Circuit  Court.”  10  Wheaton  128.  And  this 
decision  acquires  double  authority,  as  a precedent  to  establish  the 
principles  which  it  affirms,  inasmuch  as  it  was  given  upon  appeal, 
and  reversed  the  decision  of  the  Circuit  Court,  which  had  resort- 
ed to  the  drawing  of  lots,  both  for  the  designation  of  the  number, 
and  for  the  specification  of  individuals.  v 

Lawless  and  tyrannical;  (may  it  please  the  Court — Truth,  Jus- 
tice, and  the  Rights  of  human  kind  forbid  me  to  qualify  these 
epilhets)  Lawless  and  Tyrannical,  as  this  order  thus  was  upon  its 
face,  the  cold  blooded  cruelty  with  which  it  was  issued — was  al- 
together congenial  to  its  spirit — I have  said  that  it  was  issued  in 
the  dead  of  winter — and  that  the  Grampus  was  of  so  small  a bur- 
den as  to  be  utterly  unfit  for  the  service  upon  which  she  was  or- 
dered. I now  add  that  the  gallant  officer  who  commanded  her 
remonstrated,  with  feelings  of  indignation,  controlled  only  by  the 
respect  officially  due  from  him  to  his  superiors  against  it.  That 
he  warned  them  of  the  impossibility  of  stowing  this  cargo  of  hu- 
man flesh  and  blood  beneath  the  deck  of  the  vessel,  and  that  if  they 
should  be  shipped  in  the  month  of  January,  on  her  deck,  and  the  al- 
most certain  casualty  if  a storm  should  befal  them  on  the  passage 
to  Cuba,  they  must  all  inevitably  perish.  He  remonstrated  in 
vain  ! He  was  answered  only  by  the  mockery  of  an  instruction, 
to  treat  his  prisoners  with  all  possible  tenderness  and  attention. — 
If  the  whirlwind  had  swept  them  all  into  the  ocean  he  at  least 
would  have  been  guiltless  of  their  fate. 

But  although  the  order  of  delivery  was  upon  its  face  absolute 
and  unconditional,  it  was  made  conditional,  by  instructions  from 
the  Secretary  of  State  to  the  District  Attorney.  It  was  to  be 
executed  only  in  the  event  of  the  decision  of  the  court  being 
favorable  to  the  pretended  application  of  the  Spanish  minister, 
and  Lieutenant  Paine  was  to  receive  the  negroes  from  the  custody 
of  the  marshal  as  soon  as  their  delivery  should  have  been  ordered 
by  the  court. 

“ Letting  I dare  not  wait  upon  I would,”  a direct  collision  with 
the  authority  of  the  judicial  tribunals  was  cautiously  avoided; 
and  a remarkable  illustration  of  the  thoughtless  and  inconsiderate 
character  of  the  whole  Executive  action  in  this  case,  appears  in 
the  fact,  that  with  all  the  cunning  and  intricate  stratagems  to 
grab  and  ship  off  these  poor  wretches  to  Cuba,  neither  the  Presi- 
dent of  the  United  States  who  signed,  nor  the  Secretary  of  State 
who  transmitted  the  order  knew,  but  both  of  them  mistook  the 


84 


court,  before  which  the  trial  of  the  Africans  was  pending.  They 
supposed  it  was  the  Circuit,  when  in  fact  it  was  the  District 
Court. 

The  Grampus  arrived  at  New  Haven  three  days  before  the  de- 
cision of  Judge  Judson  was  pronounced.  Her  appearance  there, 
in  January,  when  the  ordinary  navigation  of  Long  Island  Sound 
is  suspended,  coming  from  the  adjoining  naval  station  at  Brook- 
lyn,  naturally  excited  surprise,  curiosity,  suspicion.  What  could 
be  the  motive  of  the  Secretary  of  the  Navy  for  ordering  a public 
vessel  of  the  United  States  upon  such  a service  at  such  a time  1 
Why  should  her  commander,  her  officers  and  crew  be  exposed, 
in  the  most  tempestuous  and  the  coldest  month  of  the  year,  at 
once  to  the  snowy  hurricanes  of  the  northeast,  and  the  ice-bound 
shores  of  the  northwest  I These  were  questions  necessarily  oc- 
curring to  the  minds  of  every  witness  to  this  strange  and  sudden 
apparition.  Lieut.  Paine  and  his  officers  were  questioned  why 
they  were  there,  and  whither  they  were  bound  1 They  could  not 
tell.  The  mystery  of  iniquity  sometimes  is  but  a transparent 
veil  and  reveals  its  own  secret.  The  fate  of  the  Amistad  eaptives 
rvas  about  to  be  decided  as  far  as  it  could  be  by  the  judge  of  a sub- 
ordinate tribunal.  The  surrender  of  them  had  been  demanded 
of  the  Executive  by  a foreign  minister,  and  earnestly  pressed  upon 
the  court  by  the  President’s  officer,  the  District  Attorney.  The 
sudden  and  unexpected  appearance  of  the  Grampus,  with  a des- 
tination unavowed,  was  a very  intelligble  signal  of  the  readiness, 
of  the  willingness,  of  the  wish  of  the  President  to  comply  with 
the  foreign  minister’s  demand.  It  was  a signal  equally  intelligi- 
ble to  the  political  sympathies  of  a judge  presumed  to  be  congen- 
ial to  those  of  a northern  President  with  southern  principles,  and 
the  District  Attorney  in  his  letter  of  20th  December  had  given 
soothing  hopes  to  the  Secretary  of  State,  which  he  in  turn  had 
communicated  in  conference,  on  the  28th  of  December,  to  the 
Spanish  minister,  that  the  decree  of  the  judge,  dooming  the  Afri- 
cans to  servitude  and  death  in  Cuba,  would  be  as  pliant  to  the 
vengeful  thirst  of  the  barracoon  slave-traders,  as  that  of  Herod 
was  in  olden  times  to  the  demand  of  his  dancing  daughter  for  the 
head  of  John  the  Baptist  in  a charger. 

But  when  Lieut.  Paine  showed  to  the  District  Attorney  the  Ex- 
ecutive warrant  to  the  marshal  for  the  delivery  of  the  negroes,  he 
immediately  perceived  its  nullity  by  the  statement  that  they  were 


85 


in  custody  under  a process  from  the  “ Circuit  Court”  and  that 
the  same  error  had  been  committed  in  the  instructions  to  the  mar- 
shal. “ In  great  haste,”  therefore,  he  immediately  dispatched 
Lieut.  Meade,  as  a special  messenger  to  Washington,  requesting 
a correction  of  the  error  in  the  warrant  and  instructions  ; giving 
notice  that  if  the  pretended,  friends  of  the  negroes  obtain  a writ 
of  habeas  corpus,  the  marshal  could  not  justify  under  the  warrant  as 
it  was;  and  that  the  decision  of  the  court  would  undoubtedly  be 
had  by  the  time  the  bearer  of  the  message  would  be  able  to  return 
to  New  Haven. 

This  letter  was  dated  the  11th  of  January,  1840.  The  trial  had 
already  been  five  days  “progressing.”  The  evidence  was  all  in, 
and  the  case  was  to  be  submitted  to  the  court  on  that  day.  Mis- 
givings were  already  entertained  that  the  decision  of  the  judge 
might  not  be  so  complacent  to  the  longings  of  the  Executive  de- 
partment as  had  been  foretold  and  almost  promised  on  the  20th 
of  December.  Mr.  Holabird,  therefore,  at  the  desire  of  the  Mar- 
shal propounds  that  decent  question,  and  requests  precise  instruc- 
tions, “ whether  in  the  event  of  a decree  by  the  court  requiring 
the  Marshal  to  release  the  Negroes,  or  in  case  of  an  appeal  by  the 
adverse  party,  it  was  expected  the  Executive  warrant  [to  ship  off 
the  prisoners  in  the  Grampus  to  Cuba,]  would  be  executed  V 
These  inquiries  may  account  perhaps  for  the  fact  that  the  same 
Marshal,  after  the  District  and  Circuit  Courts  had  both  decided  that 
these  negroes  were  free,  still  returned  them  upon  the  census  of 
the  inhabitants  of  Connecticut  as  Slaves. 

The  Secretary  of  State  was  more  wary.  The  messenger,  Lieut. 
Meade,  bore  his  dispatch  from  New  Haven  to  Washington  in 
one  day.  On  the  12th  of  January,  Mr.  Forsyth  in  a confidential 
letter  to  Mr.  Holabird  informs  him  that  his  missive  of  the  day  be- 
fore had  been  received.  That  the  order  for  the  delivery  of  the 
Negroes  to  Lieut.  Paine  of  the  Grampus  was  returned,  corrected 
agreeably  to  the  District  Attorney’s  suggestion — by  whom  cor- 
rected no  uninitiated  man  can  tell.  Of  the  final  warrant  of  Mar- 
tin Van  Buren,  President  of  the  United  States,  to  the  Marshal  of 
the  District  of  Connecticut,  to  ship  for  transportation  beyond  the 
seas,  an  undefined,  nameless  number  of  human  beings,  not  a trace 
rmains  upon  the  records  or  the  files  of  any  one  of  the  Executive 
Departments,  and  when  nearly  three  months  after  this  transaction 
the  documents  relating  to  it  were,  upon  a call  from  the  House  of 


Representatives,  communicated  to  them  by  massage  from  Mr.  Van 
Buren  himself,  this  original,  erroneous,  uncorrected  order  of  the 
7th  of  January,  1840,  was  the  only  one  included  in  the  communi- 
cation. 

But  in  the  confidential  answer  of  the  Secretary  of  State  of  the 
12th  of  January  to  the  inquiries  of  the  Marshal,  he  says,  “ I have 
to  state  by  direction  of  the  President,  that  if  the  decision  of  the 
Court  is  such  as  is  anticipated , (that  is,  that  the  captives  should  be 
delivered  up  as  slaves,)  the  order  of  the  President  is  to  be  car- 
ried into  execution,  unless  an  appeal  shall  actually  have  been  inter- 
posed, you  are  not  to  take  it  for  granted  that  it  will  be  interposed.  And 
if  on  the  contrary  the  decision  of  the  Court  is  different , you  are  to 
take  out  an  appeal,  and  allow  things  to  remain  as  they  are  until 
the  appeal  shall  have  been  decided.”  The  very  phraseology  of 
this  instruction  is  characteristic  of  its  origin,  and  might  have 
dispensed  the  Secretary  of  State  from  the  necessity  of  stating 
that  it  emanated  from  the  President  himself.  The  inquiry  of  the 
Mai’shal  was  barefaced  enough  ; whether,  if  the  Executive  warrant 
and  the  judicial  decree  should  come  in  direct  conflict  with  each 
other,  it  was  expected  that  he  should  obey  the  President , or  the 
Judgel  No!  says  the  Secretary  of  State.  If  the  decree  of  the 
Judge  should  be  in  our  favor,  and  you  can  steal  a march  upon 
the  negroes  by  foreclosing  their  right  of  appeal,  ship  them  off 
without  mercy  and  without  delay  : and  if  the  decree  should  be  in 
their  favor,  fail  not  to  enter  an  instantaneous  appeal  to  the  Supreme 
Court  where  the  chances  may  be  more  hostile  to  self-emancipated 
slaves. 

Was  ever  such  a scene  of  Liliputian  trickery  enacted  by  the  ru- 
lers of  a great,  magnanimous,  and  Christian  nation  ? Contrast  it 
with  (hat  act  of  self-emancipation  by  which  the  savage,  heathen 
barbarians  Cinque  and  Grabeau  liberated  themselves  and  their 
fellow  suffering  countrymen  from  Spanish  slave-traders,  and 
which  the  Secretary  of  State,  by  communion  of  sympathy  with 
Ruiz  and  Montes,  denominates  lawless  violence.  Cinque  and  Gra- 
beau are  uncouth  and  barbarous  names.  Call  them  Harmodius 
and  Aristogiton,  and  go  back  for  moral  principle  three  thousand 
years  to  the  fierce  and  glorious  democracy  of  Athens.  They  too 
resorted  to  lawless  violence , and  slew  the  tyrant  to  redeem  the 
freedom  of  their  country.  For  this  heroic  action  they  paid  the 
forfeit  of  their  lives  : but  within  three  years  the  Athenians  expel- 


87 


led  their  tyrants  themselves,  and  in  gratitude  to  their  self-devoted 
deliverers  decreed,  that  thenceforth  no  slave  should  ever  bear 
either  of  their  names.  Cinque  and  Grabeau  are  not  slaves.  Let  them 
bear  in  future  history  the  names  of  Harmodius  and  Aristogiton. 

This  review  of  all  the  proceedings  of  the  Executive  I have 
made  with  the  utmost  pain,  because  it  was  necessary  to  bring  it 
fully  before  your  Honors,  to  show  that  the  course  of  that  de- 
partment had  been  dictated,  throughout,  not  by  justice  but  by 
sympathy — and  a sympathy  the  most  partial  and  unjust.  And  this 
sympathy  prevailed  to  such  a degree,  among  all  the  persons  con- 
cerned in  this  business,  as  to  have  perverted  their  minds  with  re- 
gard to  all  the  most  sacred  principles  of  law  and  right,  on  which 
the  liberties  of  the  people  of  the  United  States  are  founded;  and 
a course  was  pursued,  from  the  beginning  to  the  end,  which  was 
not  only  an  outrage  upon  the  persons  whose  lives  and  liberties 
were  at  stake,  but  hostile  to  the  power  and  independence  of  the 
judiciary  itself. 

I am  now,  may  it  please  your  Honors,  obliged  to  call  the  atten- 
tion of  the  Court  to  a very  improper  paper,  in  relation  to  this  case, 
which  was  published  in  the  Official  Journal  of  the  Executive  Ad- 
ministration, on  the  very  day  of  the  meeting  of  this  Court,  and  in- 
troduced with  a commendatory  notice  by  the  editor,  as  the  produc- 
tion of  one  of  the  brightest  intellects  of  the  South.  I know  not 
who  is  the  author,  but  it  appeared  with  that  almost  official  sanc- 
tion, on  the  day  of  meeting  of  this  Court.  It  purports  to  be  a re- 
view of  the  present  case.  The  writer  begins  by  referring  to  the  de- 
cision of  the  District  Court,  and  says  the  case  is  “ one  of  the  deep- 
est importance  to  the  southern  states.”  I ask,  may  it  please  your 
Honors,  is  that  an  appeal  to  JUSTICE  1 What  have  the  southern 
states  to  do  with  the  case,  or  what  has  the  case  to  do  with  the 
southern  states'?  The  case,  as  far  as  it  is  known  to  the  courts  of 
this  country,  or  cognizable  by  them,  presents  points  with  which 
the  southern  states  have  nothing  to  do.  It  is  a question  of  slave- 
ry and  freedom  between  foreigners;  of  the  lawfulness  or  unlaw- 
ness  of  the  African  slave  trade  ; and  has  not,  when  properly  con- 
sidered, the  remotest  connection  with  the  interests  of  the  south- 
ern states. 

What  was  the  purpose  or  intent  of  that  article,  I am  not  pre- 
pared to  say,  but  it  was  evidently  calculated  to  excite  prejudice, 
to  arouse  all  the  acerbities  of  feeling  between  different  sections  of 


88 


this  country,  and  to  connect  them  with  this  case,  in  such  a man- 
ner as  to  induce  this  Court  to  decide  it  in  favor  of  the  alledged  in- 
terests of  the  southern  states,  and  against  the  suppression  of  the 
African  slave  trade.  It  is  not  my  intention  to  review  the  piece  at 
this  time.  It  has  been  done,  and  ably  done,  by  more  than  one 
person.  And  after  infinite  difficulty,  one  of  these  answers  has 
been  inserted  in  the  same  official  journal  in  which  the  piece  ap- 
peared. I now  wish  simply,  to  refer  your  Honors  to  the  original 
principle  of  slavery,  as  laid  down  by  this  champion  of  the  institu- 
tion. It  is  given  by  this  writer  as  a great  principle  of  national 
law  and  stands  as  the  foundation  of  his  argument.  I wish,  if  your 
Honors  deem  a paper  of  this  kind,  published  under  such  circum- 
stances, worthy  of  consideration  in  the  decision  of  a case,  that  your 
Honors  would  advert  to  that  principle,  and  say  whether  it  is  a 
principle  recognized  by  this  Court,  as  the  ground  on  which  it 
will  decide  cases. 

“ The  truth  is,  that  property  in  man  has  existed  in  all  ages  of 
the  world,  and  results  from  the  natural  state  of  man,  which  is  war. 
When  God  created  the  first  family  and  gave  them  the  fields  of  the 
earth  as  an  inheritance,  one  of  the  number,  in  obedience  to  the 
impulses  and  passions  that  had  been  implanted  in  the  human  heart, 
rose  and  slew  his  brother.  This  universal  nature  of  man  is  alone 
modified  by  civilization  and  law.  War,  conquest,  and  force,  have 
produced  slavery,  and  it  is  state  necessity  and  the  internal  law  of 
self  preservation,  that  will  ever  perpetuate  and  defend  it.” 

There  is  the  principle,  on  which  a particular  decision  is  demand- 
ed from  this  Court,  by  the  Official  Journal  of  the  Executive,  on 
behalf  of  the  southern  states'?  Is  that  a principle  recognized  by 
this  Court"?  Is  it  the  principle  of  that  DECLARATION  ? [Here 
Mr.  A.  pointed  to  the  Declaration  of  Independence,  two  copies  of 
which  hang  before  the  eyes  of  the  Judges  on  the  bench.]  It  is 
alledged  in  the  Official  Journal,  that  war  gives  the  right  to  take 
the  life  of  our  enemy,  and  that  this  confers  a right  to  make  him 
a slave,  on  account  of  having  spared  his  life.  Is  that  the  princi- 
ple on  which  these  United  States  stand  before  the  world  "?  That 
DECLARATION  says  that  every  man  is  “ endowed  by  his  Creator 
with  certain  inalienable  rights,”  and  that among  these  are  life, 
liberty,  and  the  pursuit  of  happiness.  ’ If  these  rights  are  inalien- 
able, they  are  incompatible  with  the  rights  of  the  victor  to  take 
the  life  of  his  enemy  in  war,  or  to  spare  his  life  and  make  him  a 


89 


slave.  If  this  principle  is  sound,  it  reduces  to  brute  force  all 
the  rights  of  man.  It  places  all  the  sacred  relations  of  life  at  the 
power  of  the  strongest.  No  man  has  a right  to  life  or  liberty,  if 
he  has  an  enemy  able  to  take  them  from  him.  There  is  the  prin- 
ciple. There  is  the  whole  argument  of  this  paper.  Now  I do  not 
deny  that  the  only  principle  upon  which  a color  of  right  can  be 
attributed  to  the  condition  of  slavery  is  by  assuming  that  the 
natural  state  of  man  is  War  The  bright  intellect  of  the  South, 
clearly  saw,  that  without  this  principle  for  a corner  stone,  he  had 
no  foundation  for  his  argument.  He  assumes  it  therefore  without 
a blush,  as  Hobbes  assumed  it  to  prove  that  government  and  des- 
potism are  synonymous  words.  I will  not  here  discuss  the  right 
or  the  rights  of  slavery,  but  I say  that  the  doctrine  of  Hobbes,  that 
WwTWs,  the  natural  state  of  man,  has  for  ages  been  exploded,  as 
equally  disclaimed  and  rejected  by  the  philosopher  and  the  Chris- 
tian. That  it  is  utterly  incompatible  with  any  theory  of  human 
rights,  and  especially  with  the  rights  which  the  Declaration  of  Inde- 
pendence proclaims  as  self-evident  truths.  The  moment  you  come, 
to  the  Declaration  of  Independence,  that  every  man  has  a right  to  life 
and  liberty,  an  inalienable  right,  this  case  is  decided.  I ask  no- 
thing more  in  behalf  of  these  unfortunate  men,  than  this  Decla- 
ration.  The  opposite  principle  is  laid  down,  not  by  an  unintelli- 
gent or  unthinking  man,  but  is  given  to  the  public  and  to  this 
Court,  as  coming  from  one  of  the  brightest  intellects  of  the  South. 
Your  Honors  see  what  it  comes  to,  when  carried  out.  I will  call 
the  attention  of  the  Court  to  one  more  paragraph : — 

“ Instead  of  having  the  negroes  placed  in  a situation  to  re- 
ceive punishment  for  what  offences  they  may  have  committed 
against  their  masters,  those  who  have  been  in  Cuba  in  undisputed 
possession  of  property  under  the  Spanish  flag  were  instantly  de. 
prived  of  that  possession,  and  their  final  title  to  the  property 
peremptorily  decided  upon  by  an  American  court,  in  defiance  of 
the  plainest  treaty  stipulations.  Not  only  that,  but  Ruiz  and 
Montes,  Spanish  citizens,  thus  forced  into  our  territory  under  ap- 
palling circumstances,  where  common  humanity,  independent  of 
^all  law,  demanded  that  they  should  be  treated  with  hospitality  as 
unfortunate  guests,  were  actually  thrown  into  prison  under  char- 
ges which  the  negroes  were  instigated  to  make,  for  offences  com- 
mitted against  the  negroes  while  they  were  in  Cuba,  under  the 
Spanish  jurisdiction.  This  is  the  justice  of  an  American  court. 

12 


90 


bowed  down  in  disgraceful  subserviency  before  the  bigoted  man- 
dates of  that  blind  fanaticism  which  prompted  the  Judge  upon  the 
bench  to  declare  in  his  decree,  in  reference  to  one  of  these  ne- 
groes, that,  ‘ Although  he  might  be  stained  with  crime,  yet  he 
should  not  sigh  in  vain  for  Africa  and  all  because  his  hands 
were  reeking  with  the  blood  of  murdered  white  men ! ! It  is  a 
base  outrage  (I  can  use  no  milder  language,)  upon  all  the  sympa- 
thies of  civilized  life.” 

That  is  the  complimentary  manner  in  which  the  courts  of  the 
United  States  are  treated  by  the  brightest  intellects  of  the  South, 
in  the  Official  Journal,  and  under  the  immediate  supervision  of 
the  Executive  Administration  of  the  Government. 

During  the  present  session,  a further  correspondence  between 
the  Secretary  of  State  and  the  Spanish  minister  has  been  commu- 
nicated to  Congress.  The  Spanish  minister  seems  to  be  ever  at- 
tentive to  all  that  is  going  on,  in  all  the  departments  of  Govern- 
ment, with  relation  to  this  case.  In  a letter  dated  the  20th  of 
March,  1840,  he  observes  that  the  Secretary  of  State  had  confi- 
dently asked  him  to  furnish  a copy  of  the  existing  laws  of  Cuba 
relative  to  negro  slavery.  What  was  this  fori  Was  the  Presi- 
dent of  the  United  States  under  the  impression  that  before  he 
carried  into  effect  this  exercise  of  despotic  power,  to  seize  MEN, 
by  his  own  warrant,  and  send  them  to  foreign  countries  for  punish- 
ment by  his  own  order — there  would  be  some  sort  of  decency,  at 
least,  in  having  a show  of  evidence  to  show  that  the  Spanish  law 
required  that  they  should  be  delivered  up  ? The  Secretary  of 
State  asked  Mr.  Calderon  for  evidence  in  the  case,  but  he  had 
none  to  give.  He  then  “ confidently”  asked  Mr.  Argaiz  for  the 
law  of  Spain  in  the  case — the  law,  be  it  remembered,  on  which 
the  United  States  were  presenting  a suit  against  individuals,  sole- 
ly, as  they  alledge,  in  pursuance  of  a demand  made  by  the  minis- 
ter of  Spain  to  that  effect.  What  is  the  reply  ? Mr.  Argaiz  says 
he  cannot  communicate  the  law  officially,  because  he  cannot  re- 
cognize the  jurisdiction  of  the  Court  over  the  case.  Here  is  an- 
other point-blank  contradiction  of  the  material  averment  of  the 
claim  which  the  United  States  Government  is  prosecuting  here — 
that  the  suit  is  in  pursuance  of  the  demand  of  Spain  now  pending 
against  the  Government.  Mr.  Argaiz,  therefore,  communicates  a 
certain  memorandum , “ confidentially.”  This  memorandum  be" 
gins. 


91 


<{  Mr.  Forsyth  was  pleased,  some  time  since,  to  state  to  the 
Chevalier  de  Argaiz,  that  it  would  be  expedient  to  obtain  a copy 
-of  the  laws  now  in  force  in  the  island  of  Cuba  relative  to  slavery 
The  Chevalier  de  Argaiz  therefore  immediately  requested  from 
the  Captain  General  of  that  island  every  thing  on  the  subject, 
which  has  been  determined  since  the  treaty  concluded  in  1818,  be- 
tween Spain  and  England.” 

Now,  may  it  please  the  Court,  may  I inquire  why  this  demand 
was  limited  to  laws  subsequent  to  the  treaty  of  1818  1 The  de- 
cree for  abolishing  the  slave  trade  was  issued  in  1817.  Why  did 
the  Spanish  minister  limit  his  request  to  laws  passed  after  1818  ? 
Why  was  not  the  decree  of  1817  brought  forward  1 Was  it  kept 
back  because  he  thought,  with  Mr.  Vega,  that  the  laws  had  been 
broken  so  much  in  Cuba,  that  they  were  not  in  force  ? Or  did  he 
think  the  authentication  of  that  Decree  might  have  some  injurious 
effect  in  the  trial  here  1 Whatever  was  the  reason,  it  is  certain 
that,  to  Mr.  Forsyth’s  request  for  “ a copy  of  the  laws  now  in 
force  in  the  Island  of  Cuba  relative  to  slavery,”  only  the  laws 
since  1818  were  communicated,  and  the  Decree  of  1817,  making 
the  slave  trade  unlawful  and  its  victims  free,  was  kept  back.  Even 
the  treaty  of  1885,  which  was  communicated,  “ the  Chevalier  de 
Argaiz  requests  may  be  returned  to  him,”  and  consequently  it  does 
not  appear  among  these  papers. 

In  another  letter,  dated  April  24th,  1840,  the  Chevalier  de  Ar- 
gaiz refers  to  certain  resolutions  of  the  United  States  Senate, 
passed  the  15th  of  the  same  month,  commonly  called  Mr.  Cal- 
houn’s resolutions.  I showed  the  other  day,  that  if  these  princi- 
ples are  just,  and  if  they  have  any  application  to  this  case,  Lieut. 
Gedney  had  no  right  to  seize  the  vessel  at  all.  The  resolution 
declares  that — 

“ A ship  or  vessel  on  the  high  seas,  in  time  of  peace,  engaged 
in  a lawful  commerce,  is,  according  to  the  laws  of  nations,  under 
the  exclusive  jurisdiction  of  the  State  to  which  her  flag  belongs  ; 
as  much  so  as  if  constituting  a part  of  its  own  domain  and  “ if 
such  ship  or  vessel  should  be  forced,  by  stress  of  weather,  or 
other  unavoidable  cause,  into  the  port  and  under  the  jurisdiction 
of  a friendly  power,  she,  and  her  cargo,  and  persons  on  board , 
with  their  property,  and  all  the  rights  belonging  to  their  personal 
relations  as  established  by  the  laws  of  the  state  to  which  they  be- 
long, would  be  placed  under  the  penalty  which  the  laws  of  na- 
tions extend  to  the  unfortunate  under  such  circumstances.” 


92 


Here  it  is  plain  that  the  vessel  was  in  the  hands  of  the  Africans, 
it  was  not  under  the  Spanish  flag,  they  were  at  peace  with  the 
United  States,  their  voyage  is  lawful,  the  personal  relations  estab- 
lished among  the  persons  on  board  were  that  the  Africans  were 
masters  and  the  Spaniards  captives,  subjects  ; — perhaps  by  the  laws 
of  Mendi  they  were  slaves.  So  much  for  the  resolutions,  which 
the  Secretary  of  State  says  coincide  “with  principles  which  the 
President  considers  as  founded  in  law  and  justice,”  but  which 
does  not  alter  “ the  determination  h e found  himself  obliged  to 
make  on  the  reclamation”  made  for  the  Amistad  “ and  the^-oper- 
ty  found  on  board  of  her.” 

I will  now  make  a few  observations  on  the  passport,  or  permit, 
as  it  has  been  called,  which  is  relied  on  as  of  authority  sufficient 
to  bind  this  Court  and  Government  to  deliver  up  my  clients  irre- 
vocably as  slaves,  on  a claim  of  property  by  Ruiz  and  Montes.* 
Here  we  have  what  appears  to  be  a blank  passport,  filled  up  with 
forty-nine  Spanish  names  of  persons,  who  are  described  as  ladi- 
nos , and  as  being  the  property  of  Don  Jose  Ruiz.  Now,  this  on 
the  face  of  it  is  an  imposture.  It  is  not  a passport,  that  can  be 
inspected  as  such  by  this  Court,  or  by  any  tribunal.  It  appears 
on  the  face  of  it  to  be  a passport  designed  for  one  person,  a man, 
as  there  are  blanks  in  the  margin,  to  be  filled  up  with  a descrip- 
tion of  the  person,  as  to  his  height,  age,  complexion,  hair,  fore- 


* It  is  thought  best  to  give  a copy  of  this  celebrated  passport,  as  it  appears  in 


the  Congressional  Documents,  with  the  exception  that  the  interpolate  word  we  - 
gros  is  omitted,  and  the  portions  of  the  paper  which  were  in  writing  are  printed 
in  italics.  It  will  be  seen  that  the  signature  of  the  Captain  General,  of  which  so 
much  was  made,  was  -printed  ! 


Filiacion.  N.  Habana,  26  de  Junio.  de  1839. 

Concedo  licencia  a cuerenta  y nueva  ladinos  nombra - 
dos  Antonio , Simon,  Lucas  Jose,  Pedro,  Martin,  Manuel, 
Andres,  Eduardo,  Celedonio,  Bartolo,  Ramon,  Agustin, 
Evaristo,  Casimiro , Melchor,  Gabriel,  Santorion,  Esco- 
lastico , Pascual,  Estanislao,  Desiderio,  Nicolas,  Este- 
ban, Tomas,  Cosme,  Luis,  Bartolo,  Julian,  Frederica, 
Salustiano,  Ladislao,  Celestino,  Epifaneo,  Tibureo,  Ve- 
nancio,  Felipe,  Francisco,  Hipolito,  Benito,  Ysidoro,  Vi- 
cente, Dionisio,  Apoloneo,  Esequiel,  Leon,  Julio,  Hipolito, 
y Zcnon,  de  la  propriedad  de  Don  Jose  Ruiz,  para  que 
pasen  it  Puerto  Principe  por  mar,  debiendo,  presentarse 
con  esta  al  juez  territorial  respectivo. 

Derechos  dos  real  es — una  rubrica.]  ESPELETA. 

Commandancia  de  Matriculas. 

Pasan  en  la  goleta  Amistad  d la  Guanaja,  patron  Ferrer. 

MARTINEZ. 


Estatura 
Edad 
Color 
Pelo  - 
Frente 
Cejas  - 
Ojos  . 

Nariz  - 
Boca  - 
Barba 

Senales  particulars 


Habana,  y Junio  27,  de  1839- 


93 


head,  eyebrows,  eyes,  nose,  mouth,  beard,  and  particular  marks. 
This  particular  description  of  the  person  is  the  very  essence  of 
a passport,  as  it  is  designed  to  identify  the  individual  by  the  con- 
formity of  his  person  to  the  marks  given  ; and  a passport  is  no- 
thing, and  is  good  for  nothing,  if  it  does  not  accord  with  the 
marks  given.  The  man  who  presents  it  must  show  by  this  accord- 
ance that  he  is  the  person  named.  Everybody  who  has  ever  had 
occasion  to  use  passports  knows  this.  We  are  not  in  the  habit  of 
using  passports  in  this  country ; you  may  go  through  the  country 
from  State  to  State,  freely,  without  any  passport  to  show  who  and 
what  you  are  and  what  is  your  business.  But  throughout  the 
continent  of  Europe,  passports  are  everywhere  necessary.  At 
every  town  you  show  your  passport  to  a public  officer,  who  in- 
stantly compares  your  person  with  the  description,  and  if  it  cor- 
responds, you  proceed,  but  if  the  description  varies  from  the 
reality,  you  cannot  pass.  That  is  the  nature  of  a passport.  It 
says,  let  the  person  who  bears  these  marks  pass  the  custom-house, 
or  the  guard,  as  the  case  may  be.  And  its  validity  depends  on 
the  accuracy  of  the  description. 

I once  had  occasion,  many  years  ago,  to  see  the  operation  of 
these  things  in  a very  remarkable  case.  I was  a passenger  in  a 
merchant  vessel,  bound  to  the  north  of  Europe.  In  passing 
through  the  Sound,  at  Elsinore,  we  were  arrested  by  a British 
squadron,  who  brought  us  to,  and  sent  a lieutenant  on  board  to 
examine  our  crew.  He  ordered  all  the  men  to  be  mustered  on 
deck,  and  the  captain  had  no  alternative  but  to  comply.  It  was  a 
most  mortifying  scene  to  an  American.  Every  American  seaman 
was  obliged  to  show  his  protection,  the  same  thing  at  sea  as  a 
passport  on  the  land,  to  secure  him  from  impressment  by  British 
cruisers.  The  officer  examined  every  man  carefully,  to  see 
whether  his  person  corresponded  with  the  description  in  his  pro- 
tection. He  finally  found  one  young  man,  who  was  a native  of 
Charlestown,  Massachusetts,  within  ten  miles  of  where  I was  born  ; 
but  his  description  was  not  correct,  whether  through  the  blunder 
of  the  man  who  wrote  it,  or  because  he  had  taken  another  man’s 
protection,  I do  not  know,  but  the  officer  said  he  had  a good  mind 
to  take  him,  and  if  I had  not  been  on  board,  as  the  bearer  of  a 
public  commission  in  the  service  of  the  Government,  I have  no 
doubt  that  man  would  have  been  taken,  and  compelled  to  serve 
on  board  a British  man  of  war,  solely  for  the  want  of  correspon- 


94. 


dence  of  the  description  with  his  person.  I mention  this  to  show 
that  the  value  of  a passport,  according  to  the  rules  of  those  coun . 
tries  where  such  things  are  used,  depends  on  the  description  of 
the  person,  and  this  is  all  left  blank  in  the  paper  here  presented 
us  as  a passport.  There  is  not  a particle  of  description  by  which 
even  a single  individual  named  could  be  identified.  It  is  not 
worth  a cent.  I do  not  say  it  is  a forgery,  but  I say  its  incompe- 
tency to  answer  the  purpose  of  a passport  is  apparent  on  the  face 
of  it.  Who  knows,  or  how  is  this  Court  to  ascertain,  that  the 
persons  named  in  this  paper  are  the  same  with  those  taken  in  the 
Amistadl  No  court,  no  tribunal,  no  officer,  would  accept  such 
a document  as  a passport.  And  will  this  Court  grant  its  decree 
in  a case  affecting  both  liberty  and  life  on  that  paper  ? It  is  im- 
possible. 

I now  come  to  the  case  of  the  Antelope,  as  reported  in  10 
Wheaton,  66,  and  I ask  particular  attention  to  this  case,  not  only 
because  it  brings  a show  of  authority  in  favor  of  the  delivery  up 
of  slaves,  but  because  I feel  bound  to  entreat  the  Court,  whether 
they  find  a principle  settled  by  that  case  or  not,  to  settle  the 
question  now  upon  further  and  mature  consideration.  Chief  Jus- 
tice Marshall  said,  expressly,  in  delivering  the  opinion  of  the 
Court,  that,  as  the  Court  was  divided,  “ no  principle  is  settled.” 
If  there  was  a principle  settled,  and  that  was  in  favor  of  deliver- 
ing up  persons  held  as  slaves  by  foreign  laws,  I ask  this  Court  to 
re-examine  that  principle  and  settle  it  anew.  And  if,  upon  re-ex- 
amination, by  what  l should  deem  the  greatest  misfortune  to  this 
country,  the  Court  should  be  divided  in  this  case,  as  it  was  in 
that,  I respectfully  ask  your  Honors  to  give  your  separate  opin- 
ions, with  the  reasons.  I would  not  call  in  question  the  propriety 
of  the  determination  of  the  Court  in  that  day,  severally,  to  with- 
hold their  reasons  from  the  public ; the  state  of  the  matter  is  now 
materially  altered.  It  has  become  a point  in  which  the  morals,  as 
well  as  the  liberties  of  this  country,  are  deeply  interested.  The 
public  mind  acquiesced  before,  in  postponing  the  discussion,  but 
now  it  is  no  longer  a time  for  this  course,  the  question  must  be 
met,  and  judicially  decided. 

THE  CASE  OF  THE  ANTELOPE  REVIEWED. 

The  case  of  the  Antelope  was  of  so  very  extraordinary  a cha- 
racter, and  the  decisions  of  the  District,  Circuit,  and  Supreme 


95 


Courts  of  the  United  States,  on  the  principles  involved  in  it,  were 
so  variant  from  and  conflicting  with  one  another,  that  a review  of 
its  history  will  disclose,  eminently,  the  progress  of  that  moral, 
religious,  and  political  revolution'  in  the  opinions  of  mankind 
which  has  been,  from  a period  coeval  with  that  of  North  Ameri- 
can Independence,  struggling  against  the  combined  powers  and 
dominions  of  the  earth  and  of  darkness  for  the  suppression  of  the 
African  slave-trade. 

In  the  month  of  December,  1819,  at  a time  when  piracy,  from 
her  sympathetic  and  favorite  haunts  of  Chesapeake  bay,  and  of 
Cuba,  was  habitually  sallying  forth  against  the  commerce  of  the 
world,  but  chiefly  under  the  many-colored  banners  of  the  newly- 
emancipated  colonies  of  Spain,  transformed  into  a multitude  of 
self-constituted  sovereign  and  disunited  States,  capturing  wherev- 
er they  could  be  found  the  trading  vessels  of  Portugal  and  of 
Spain,  a privateer,  named  the  Columbia,  commanded  by  a citizen 
of  the  United  States  named  Metcalf,  came  into  the  port  of  Balti- 
more under  the  flag  of  Venezuela — there  clandestinely  shipped  a 
crew  of  thirty  or  forty  men,  not  one  of  whom  had  ever  owed  al- 
legiance to  the  Republic  of  Venezuela,  and  sailed  in  search  of 
adventure,  to  pounce  upon  the  defenceless  upon  any  and  every 
ocean  for  the  spoils.  She  had  scarcely  got  beyond  the  territorial 
jurisdiction  of  the  United  States  when  she  changed  her  name  of 
Columbia  for  that  of  Arraganta,  hoisted  the  flag  of  Artigas,  then 
ruler  of  the  Oriental  Republic  of  La  Plata,  and  proceeded  for  the 
slave-coast  of  Africa — a mighty  huntress,  and  her  prey  was  man. 
There  she  fell  in  with  sister  pirates  in  abundance — first  an  Ameri- 
can, from  Bristol,  Rhode  Island,  and  borrowed  twenty-five  negro 
captives  from  her ; then  sundry  ostensible  Portuguese  vessels, 
from  which  she  took  nearly  two  hundred  ; and  lastly,  a Spaniard 
from  Cuba,  fitted  out  some  months  before  by  a slave-trading  house 
at  the  Havana,  to  catch  a yet  lawful  human  cargo  from  a region 
south  of  the  equator  ; for  the  trade  north  of  the  equator  had  even 
then  been  declared  unlawful  by  Spain.  The  name  of  this  vessel 
was,  at  that  time,  the  Antelope  ; and  with  her  and  her  living  mer- 
chandise the  Arraganta  steered  for  the  coast  of  Brazil,  for  a mar- 
ket. There  the  Arraganta  was  shipwrecked  ; her  master,  Metcalf, 
either  drowned,  or  made  prisoner  with  the  greater  part  of  his 
crew ; while  the  remainder,  under  the  command  of  John  Smith,  a 
citizen  of  the  United  States,  transhipping  themselves  and  all  their 


96 


surviving  African  captives  into  the  Antelope,  changed  her  name 
to  that  of  the  General  Ramirez,  and  stood  for  the  southern  coast 
of  the  United  States,  and  a market . 

In  the  month  of  June,  1820,  this  vessel,  thus  freighted,  was 
found  hovering  on  the  coast  of  Florida,  with  the  evident  intention 
of  surreptitiously  introducing  the  negroes  and  effecting  the  sale 
of  them  within  the  United  States.  She  was  there  in  flagrant  vio- 
lation of  two  classes  of  their  laws — those  intended  to  suppress 
the  unlawful  interference  of  our  citizens  in  the  civil  war  then 
raging  between  Spain  and  her  South  American  Colonies  contend- 
ing for  their  independence,  and  those  prohibiting  their  participa- 
tion in  the  slave  trade,  and  denouncing  it  as  piracy. 

She  was  reported  to  Captain  John  Jackson,  then  cruising  on  the 
same  coast  in  the  Revenue  Cutter  Dallas,  as  a vessel  of  piratical 
appearance.  He,  thereupon,  boarded  her  ; and  finding  her  full  of 
negro  slaves,  and  commanded  by  John  Smith,  holding  forth  at 
once  a privateering  commission  from  Artigas,  and  a protection  as 
a citizen  and  seaman  of  the  United  States,  he  took  possession  of 
her,  and  brought  her  into  the  port  of  Savannah,  in  the  judicial 
district  of  Georgia,  for  adjudication. 

Upon  this  plain  and  simple  statement  of  facts,  can  we  choose 
but  exclaim,  if  ever  soul  of  an  American  citizen  was  polluted  with 
the  blackest  and  largest  participation  in  the  African  slave-trade, 
when  the  laws  of  his  country  had  pronounced  it  piracy,  punisha- 
ble with  death,  it  was  that  of  this  same  John  Smith.  He  had  re- 
nounced and  violated  those  rights,  by  taking  a commission  from 
Artigas  to  plunder  the  merchants  and  mariners  of  nations  in 
friendship  with  his  own  ; and  yet  he  claimed  the  protection  of 
that  same  country  which  he  had  abandoned  and  betrayed.  Why 
was  he  not  indicted  upon  the  act  of  15th  May,  1820,  so  recently 
enacted  before  the  commission  of  his  last  and  most  atrocious 
crime  1 

And  can  we  choose  but  further  exclaim — if  ever  hapless  Afri- 
can, kidnapped  into  slavery  by  one  gang  of  ruffians,  and  then 
stolen  by  another,  and  by  them  attempted  to  be  smuggled  into 
our  country  as  slaves,  and  by  a fortunate  casualty  brought  within 
our  jurisdiction  and  the  beneficent  operation  of  our  emancipating 
laws,  was  entitled  to  the  blessing  of  freedom,  and  the  right  of 
being  transported  under  our  national  protection  to  his  native  land, 
so  was  every  individual  African  found  by  Captain  Jackson  on 


97 


board  of  the  Antelope,  and  brought  within  the  jurisdiction  of  this 
Federal  Union.  Why  were  they  not  instantly  liberated  and  sent 
home  to  Africa  by  the  act  of  March  3d,  1819.  Alas  ! far  other- 
wise was,  in  the  judicial  district  of  Georgia,  the  disposal  of  this 
pirate,  robber,  and  traitor  to  his  country ! Instead  of  being  in- 
dicted for  all  or  any  one  of  his  many  violations  of  the  laws  of  the 
United  States,  of  nations,  and  of  humanity,  he  was  not  only  suffer- 
ed to  go  at  large,  entirely  unmolested,  but  was  permitted  to  file 
his  claim,  before  the  District  Court  of  the  United  States  in  Geor- 
gia, for  the  restitution  to  him  of  the  Antelope  and  all  her  living 
cargo,  as  captured  jure  belli , by  virtue  of  his  commission  from 
Artigas.  This  claim  was,  indeed,  dismissed,  with  costs,  by  the 
judge  of  the  District  Court,  William  Davis.  Smith  appealed  from 
that  decision  to  the  Circuit  Court,  the  presiding  judge  of  which, 
William  Johnson,  confirmed  the  decision  of  the  District  Court, 
and  spoke  with  suitable  severity,  not  of  the  wickedness,  but  of 
the  absurdity  of  Smith’s  pretension.  And  here,  and  in  freely 
commenting  hereafter  upon  the  opinions  and  decisions  upon  this 
case,  of  these  two  judges,  William  Davis  and  William  Johnson, 
both  long  since  deceased,  truth  and  justice  require  the  remark, 
with  all  the  respect  due  to  their  memories  as  upright  judges  and 
honorable  men,  that  they  were  both  holders  of  slaves,  adjudicat- 
ing in  a State  where  slavery  is  the  law  of  the  land.  If  this  cir- 
cumstance may  account  for  the  fact,  that  the  ministers  of  national 
justice  in  Georgia  slumbered  over  the  manifold  transgressions  of 
John  Smith,  for  rvhich  he  never  was  prosecuted,  it  will  account 
no  less  for  that  division  of  opinion  in  the  Supreme  tribunal  of  the 
Union,  which  veiled  from  public  examination  and  scrutiny  the 
reasons  of  each  judge  for  his  own  opinion,  because,  as  the  Chief 
Justice  declared,  no  principle  was  settled.  John  Smith  did  not 
venture  to  appeal  from  the  decisions  of  the  District  and  Circuit 
Courts  against  his  claim  to  the  Supreme  Court  of  the  United 
States.  His  plunder  slipped  from  his  hands;  but  his  treachery  to 
his  country  for  a commission  from  Artigas,  his  buccanier  and 
slave-trade  piracies,  though  not  even  undivulged  crimes,  yet  re- 
mained unwhipped  of  justice. 

On  the  27th  of  July,  1820,  Capfain  John  Jackson,  in  behalf  of 
himself,  and  of  the  officers  and  crew  of  the  Revenue  Cutter  Dal- 
las, filed  in  the  District  Court  a libel  against  the  Antelope,  or  Gen- 
eral Ramirez,  for  forfeiture,  under  the  act  of  Congress  of  20th 
13 


98 


April,  1818,  prohibiting  American  citizens  from  engaging  in  the 
African  slave-trade. 

At  the  same  Court,  Charles  Mulvey,  vice-consul  of  Spain,  and 
Francis  Sorell,  vice-consul  of  Portugal,  at  Savannah,  filed  each  a 
libel  for  restitution,  the  former  of  150,  the  latter  of  130  African 
negroes,  composing  the  cargo  of  the  Antelope.  To  these  two 
libels  Richard  Habersham,  district  attorney  of  the  United  States, 
interposed  in  their  name  a claim  to  the  freedom  of  all  the  negroes, 
on  the  ground  that  some  American  citizen  was  interested  or  en- 
gaged in  their  transportation  from  Africa. 

The  Spanish  vice-consul  claimed  the  vessel  and  all  the  negroes 
in  behalf  of  the  original  fitters  out  of  the  Antelope,  for  the  slave- 
trading voyage,  at  the  Havana. 

And  Captain  Jackson  claimed  salvage  for  all  the  negroes  who 
might  be  adjudged  to  the  Spanish  and  Portuguese  vice-consuls  | 
and  twenty-five  dollars  a head  for  all  those  who  might  be  declared 
free,  according  to  the  act  of  Congress. 

The  judge  of  the  District  Court,  after  rejecting  the  claim  of 
John  Smith,  on  the  ground  of  the  illegality  of  the  fitting  out  of 
the  Columbia,  or  Arraganta,  at  Baltimore,  and  thereby  settling  the 
principle,  that  no  capture  made  by  that  vessel  could  be  legal, 
seems  to  have  forgotten,  or  overlooked,  the  violation  by  the  same 
John  Smith  of  the  laws  of  the  United  States  for  the  suppression 
of  the  slave-trade ; at  least,  so  far  as  concerned  all  the  negroes 
on  board  the  Antelope,  excepting  only  a small  remnant  of  twenty- 
five,  which  had  been  taken  from  the  American  slave-trader,  the 
Exchange,  from  Bristol,  Rhode  Island.  John  Smith  had  made  no 
attempt  to  smuggle  these  into  the  United  States  separate  from 
the  rest.  His  attempt  had  been  to  smuggle  them  all  in.  Why, 
then,  should  those  taken  from  the  American  vessel  alone  be  de- 
clared free,  and  those  taken  from  the  Spaniards  and  Portuguese 
doomed  to  perpetual  slavery  l 

The  judge  hunted  up  sundry  old  decisions  in  the  Supreme  Court 
of  the  United  States,  and,  finally,  the  case  of  the  Josafa  et  Segun- 
da,  5 Wheaton,  338,  for  a principle  “ that,  upon  a piratical  or  ille- 
gal capture,  the  property  of  the  original  owners  cannot  be  for- 
feited for  the  misconduct  of  the  captors  in  violating  the  municipal 
laws  of  the  country  where  the  vessel  seized  by  them  is  carried.” 
The  application  of  which  principle  to  the  rights  of  the  respective 
parties  in  the  case  of  the  Antelope  was,  that  the  property  of  the 


99 


Spanish  owners  of  the  Antelope  could  not  be  forfeited  by  the  mis- 
conduct of  John  Smith  in  capturing  it,  in  violation  of  the  laws  of 
the  United  States,  by  virtue  of  a commission  from  Artigas.  Thus 
far  the  principle  was  correctly  applied  ; hut  to  that  other  miscon- 
duct of  John  Smith,  the  attempt  to  smuggle  these  negroes  into 
the  United  States,  by  which  they  became  forfeited,  and  made  free 
by  the  law,  whoever  might  have  been  their  owner  ; to  that  mis- 
conduct, the  precedent  of  the  Josafa  et  Segunda  had  no  applica- 
tion whatever,  and  it  was  altogether  overlooked  in  the  decision  of 
the  district  judge,  although  he  decreed  freedom  to  the  chance 
chosen  survivors  of  the  twenty-five  negroes  of  the  very  same 
cargo,  taken  from  the  American  vessel,  though  forfeited  and  lib- 
erated by  the  very  same  attempt  of  John  Smith  to  smuggle  them 
into  the  United  States  for  sale.  It  was  perfectly  immaterial  to 
the  question  of  forfeiture  and  liberation  to  whom  all  or  any  of 
the  negroes  had  originally  belonged.  It  was  the  attempt  to  smug- 
gle them  which  induced  their  forfeiture  by  the  rigor,  and  their 
consequent  liberation  by  the  beneficence,  of  the  law. 

But  having  once  introduced  this  entirely  extraneous  question, 
to  whom  the  negroes  on  board  the  Antelope,  when  captured  by 
Captain  Jackson,  had  originally  belonged , the  District  Judge  pro- 
ceeded, upon  such  evidence  as  he  deemed  sufficient,  to  decide, 
that  those  captured  in  her  by  the  Arraganta,  were  the  property  of 
Spaniards,  and  without  one  title  of  evidence,  to  infer , that  all  the 
negroes  taken  from  vessels  under  Portuguese  colors,  had  been 
the  property  of  Portuguese  subjects,  unknown  ; and  upon  these 
conclusions  and  assumptions,  to  adjudge  all  the  negroes,  save  the 
scanty  surviving  remnant  of  twenty-five  taken  from  the  Exchange 
of  Rhode  Island,  to  the  Spanish  and  Portuguese  Vice  Consuls. 

A.t  this  distance  of  time,  who  can  read  such  an  adjudication  of 
an  American  judge,  without  amazement. 

The  claim  of  C.  Mulvey  [Spanish  Vice  Consul]  was  therefore 
sustained  to  the  Antelope,  and  to  as  many  of  the  negroes,  as 
should  appear  to  be  remaining  of  those  found  on  board  of  her  at 
the  time  of  her  capture  by  the  Arraganta. 

The  libel  of  F.  Sorrell,  the  Portuguese  Vice  Consul,  was  sus- 
tained against  so  many  of  the  slaves  as  should  appear  to  remain 
of  those  taken  by  the  Arraganta  from  Portuguese  vessels. 

And  it  was  further  ordered  with  assent  of  parties,  (that  is,  of 
these  two  parties  the  Spanish  and  Portuguese  Vice  Consuls,  and 


100 


well  they  might  assent!)  that  the  claim  of  John  Jackson  to  sal- 
vage, should  be  sustained  as  regarded  the  negroes  claimed  by  and 
adjudged  to  them — and  as  regarded  those  adjudged  to  the  United 
States,  to  an  allowance  of  twenty  five  dollars  for  each  according 
the  Act  of  Congress  of  3d  March,  1819. 

This  decree  was  pronounced  on  the  21st  of  February  1821 — 
and  the  clerk  of  the  court  was  directed  on  or  before  the  26th  day 
of  the  same  month  to  report  to  the  court  the  number  of  Spanish 
and  Portuguese  negroes  in  the  hands  of  the  marshal,  distinguish- 
ing the  negroes  respectively  belonging  to  each.  He  was  also  re- 
quired to  designate  the  very  small  number  adjudged  to  the  Unit- 
ed States,  that  is,  to  the  blessed  enjoyment  of  themselves  and  their 
own  liberty  ; and  associating  with  himself  two  resident  merchants, 
was  at  che  same  time  to  report  the  quantum  or  proportion  of  salvage 
to  be  allowed  to  Captain  Jackson  for  the  negroes  thus  reputably 
and  substantially  sold  by  the  judicial  authority  of  the  United  States 
to  the  Spanish  and  Portuguese  Vice  Consuls. 

This  unblushing  bargain  and  sale  of  human  captives,  entitled  at 
least  by  the  intention  of  the  United  States  laws  to  their  free- 
dom, was  the  first  incident  which  brought  to  a pause  the  legal 
standard  of  morality  of  a Connecticut  District  Judge  of  the  Unit- 
ed States  in  the  case  of  the  Amistad  captives.  An  estimate  in  dol- 
lars and  cents  of  the  value  at  JVew  Haven , of  from  two  to  three 
hundred  living  men  and  women,  for  the  purpose  of  allowing  sal- 
vage upon  them  as  merchandise,  was  too  much  for  the  nerves  of 
a Yankee  judge.  The  authority  of  the  case  of  the  Antelope  was 
in  this  particular  no  precedent  for  him.  The  very  proposal  shock- 
ed his  moral  sense,  and  he  instantly  decided  that  men  and  women 
were  not  articles  for  a price  current  in  the  markets  overt  of  Con- 
necticut. 

In  the  markets  of  Savannah,  nothing  was  more  simple.  The 
clerk  of  the  District  Court,  with  his  two  associated  resident  mer- 
chants, in  obedience  to  the  order  of  the  judge  appraized  the  ne- 
groes taken  from  the  Spanish  and  Portuguese  vessels  at  three 
hundred  dollars  per  head,  making  the  aggregate  of  sixty-one  thou- 
sand five  hundred  dollars  [for  205  souls ] ; and  they  were  of  opi- 
nion that  there  should  be  an  allowance  of  one  fourth  of  said  sum 
to  Captain  Jackson,  his  officers  and  crew,  for  salvage  on  the  said 
negroes. 

Seventy-five  dollars  per  head!  Fifteen  thousand  three  hundred 


101 


and  seventy.five  dollars  for  two  hundred  and  five  men  and  women ! 
What  a revolution  in  the  relative  value  of  slaves  and  of  freemen, 
since  the  age  of  Homer ! In  the  estimate  of  that  Prince  of  Gre- 
cian Poets. 

Jove  fix’d  it  certain  that  whatever  day 
Makes  man  a slave,  takes  half  his  worth  away  — 

and  in  the  political  statistics  of  the  author  of  the  Declaration  of 
Independence  the  degradation  of  the  character  of  man,  by  the  in- 
fliction upon  him  of  slavery  is  far  greater  than  is  asserted  by  the 
blind  old  rhapsodist  of  Smyrna.  But  here  we  have  an  inverted 
proportion  of  relative  value,  and  Captain  Jackson,  by  the  decree 
of  a Judicial  Court  of  the  United  States  receives  twenty-five  dol- 
lars a head  for  redeeming  one  parcel  of  Africans  from  slavery  to 
freedom,  while  at  the  same  time  he  was  to  receive  seventy-five 
dollars  a head  for  reducing  by  the  same  act  two  other  parcels  of 
the  same  company  from  freedom  to  slavery  ! 

Nor  was  the  manner  in  which  the  clerk  of  the  District  Court 
executed  the  order  to  report  the  relative  numbers  of  the  three 
classes  of  the  captured  Africans,  the  least  extraordinary  part  of 
these  proceedings. 

He  reported  that  two  hundred  and  fifty-eight  negroes  had  been 
delivered  by  Captain  John  Jackson,  Commander  of  the  Revenue 
Cutter  Dallas,  on  the  25th  of  July,  1820,  to  the  marshal  of  Geor- 
gia, from  on  board  the  General  Ramirez  [the  Antelope.]  That 
of  that  number  forty-four  had  died  in  the  space  of  seven  months 
— one  was  missing  and  one  discharged  by  order  of  court,  and  that 
the  marshal  returned  two  hundred  and  twelve  negroes  which  re- 
mained to  be  apportioned. 

What  had  become  of  the  missing  one  neither  the  clerk  nor  the 
judge  seems  to  have  thought  it  worth  his  while  to  inquire — why 
should  they  ? it  was  but  one  man  —and  that  man  a negro  ! no  fur- 
ther trace  of  him  appears  upon  the  record. 

Neither  was  it  thought  necessary  to  record  the  reason  of  the 
favor  bestowed  by  the  court  upon  one  other  man  in  ordering  his 
discharge.  The  very  nature  of  the  order  is  its  own  justification. 

But  mark  the  mortality  of  the  negroes  ! out  of  258,  four  deaths 
in  the  space  of  seven  months!  and  that,  not  while  crammed  be- 
tween the  decks  of  a slaver  in  the  middle  passage,  but  on  the  soil 
of  the  American  Union,  in  the  rnild  and  healthy  climate  of  Geor- 
gia— in  the  custody  of  an  officer  commissioned  by  the  President 


102 


of  the  United  States,  and  under  the  protection  of  their  judicial 
magistracy.  In  the  case  of  the  Amistad,  the  mortality  ceased,  as 
as  soon  as  the  captives  were  admitted  to  the  privilege  of  breath- 
ing in  the  atmosphere  of  freedom. 

But  if  the  death  of  one  man  in  six,  in  the  space  of  seven  months, 
is  deeply  distressing  to  the  sympathies  of  our  nature,  what  shall 
we  say  to  a mortality  of  eighteen  out  of  twenty. five,  which  the 
clerk  reported  as  the  proportion  of  deaths  among  the  negroes 
taken  from  the  American  vessel,  the  Exchange,  and  who  were  by 
the  final  decree  of  the  judge  to  be  liberated  1 The  clerk  in  his 
report  denominates  them  American  negroes,  and  he  reduces  their 
number  to  seven.  Seven  African  Gaptives  out  of  two  hundred 
and  fifty-eight,  was  the  number  to  whom  the  benignity  of  the 
laws  of  the  American  Union  enacted  for  the  suppression  of  the 
African  slave  trade,  and  expounded  by  the  District  Court  of  the 
United  States  in  Georgia,  would  have  extended  the  inestimable 
blessings  of  freedom  and  restoration  to  their  country  ! 

The  clerk  had  been  required  to  report  the  number  of  Spanish, 
Portuguese,  and  American  negroes — distinguishing  those  respect- 
ively belonging  to  each  of  these  classes.  He  could  obtain  no  evi- 
dence worth  a straw  upon  which  to  found  his  report,  the  negroes 
were  all  huddled  together  in  one  crowd — John  Smith,  the  pirate, 
was  the  only  witness  who  could  tell  him  which  were  the  negroes 
taken  out  of  the  American  vessel,  and  he  told  him  that  sixteen  out 
of  the  twenty-five  had  died,  before  the  capture  of  the  Antelope  by 
Capt.  Jackson.  The  clerk  reported  accordingly,  and  added  two  to 
the  number  of  deaths,  as  the  average  loss  since  the  25th  of  July  ; 
that  is,  since  they  had  been  in  the  custody  of  the  marshal. 

It  further  appears  from  his  report  that  the  whole  number  cap- 
tured by  the  Arraganta  had  been  331,  of  which  213  were  Por- 
tuguese, 93  Spanish,  and  25  American.  That  of  the  whole  num- 
ber 119  had  died,  but  in  what  proportions  from  the  general  classes 
he  could  not  ascertain.  John  Smith  testified  that  sixteen  of  the 
25  American  negroes  had  died  before  the  Antelope  was  taken  by 
Captain  Jackson,  and  the  clerk  guessed  that  two  more  had  died 
since,  because  that  was  the  average  loss  of  9 to  44  out  of  258. 
But  neither  John  Smith  nor  any  one  else  could  point  out  the  in- 
dividual survivors  of  each  separate  class,  and  the  clerk  therefore 
reported  that  there  had  been  captured  by  the  Arraganta  213  Por- 
tuguese negroes, of  which  the  average  loss  was  71 ; — 93  Spanish  ne- 


103 


groes  of  which  the  average  loss  was  30,  and  25  American  negroes, 
of  whom  the  deaths  attested  by  John  Smith  were  16,  and  the 
subsequent  average  loss  2,  leaving  as  before  stated  212  to  be  ap- 
portioned— that  is,  142  to  the  Portuguese  Vice  Consul,  63  to  the 
Spanish  Vice  Consul,  and  7 to  the  United  States,  to  be  sent  home 
to  Africa ; freemen  by  the  mandate  of  our  laws. 

That  the  whole  212  were  entitled  to  the  benefit  of  the  same 
laws,  I cannot  possibly  doubt — but  such  was  not  the  decision  of 
the  District  Judge.  Exceptions  were  taken  to  the  report  of  the 
clerk,  by  the  District  Attorney  of  the  United  States,  Richard 
W.  Habersham,  and  by  Spanish  Vice  Consul  Mulvey.  The  Dis- 
trict Attorney  still  claiming  the  freedom  of  all  the  negroes,  and 
objecting  to  the  allowance  of  75  dollars  a head  to  Captain  Jack- 
son  for  salvage,  though  not  to  the  allowance  of  25  dollars  a head 
for  their  liberation.  The  Spanish  Vice  Consul  insisting  that  the 
number  of  slaves  allowed  to  the  Spanish  claimants  was  too  few 
and  not  supported  by  any  testimony  in  the  case — and  that  the  al- 
lowance to  Captain  Jackson  for  salvage  was  too  high,  and  ought 
to  be  regulated  by  the  act  of  Congress  in  relation  to  the  compen- 
sation given  in  case  the  said  slaves  had  been  decreed  to  be  deliver- 
ed to  the  United  States. 

The  Judge  confirmed  the  report  of  the  Clerk  in  all  its  parts; 
and  the  District  Attorney,  in  behalf  of  the  United  States,  and  the 
Spanish  Vice  Consul,  in  behalf  of  the  Spanish  claimants,  appealed 
to  the  Circuit  Court,  then  next  to  be  held  at  Milledgeville  on  the 
8th  day  of  May,  1821. 

In  these  decisions  of^the  District  Court,  is  it  possible  to  avert 
one’s  eyes  from  the  glaring  light  of  an  over-ruling  propensity  to 
narrow  down,  if  not  wholly  to  nullify,  the  laws  of  the  United  States 
for  the  suppression  of  the  African  slave  trade  1 To  sustain  the 
claim  of  the  Spanish  Vice  Consul,  the  irrelevant  question  to  whom 
the  Antelope  had  originally  belonged,  was  introduced  ; and  upon 
that  was  engrafted  the  deeply  controverted  question,  whether  the 
African  slave  trade  was  or  was  not  coutrary  to  the  law  of  nations. 
To  redeem  from  forfeiture  the  Antelope  and  the  negroes  captured 
in  her  by  the  Arraganta,  the  judge  resorted  to  an  argument  of 
counsel  in  the  recently  reported  case  of  the  Josefa  Segundas, 
(Wheaton,  338,)  where  it  was  said,  that  as  piracy  can  neither  di- 
vest nor  convey  property,  a pirate  cannot,  by  a subsequent  viola- 
tion of  the  laws  of  his  own  country,  forfeit  the  property  of  which 


104 


he  has  acquired  possession  by  preceding  piracy.  This  seems 
equivalent  to  a principle  that  a second  act  of  piracy  protects  the 
pirate  from  punishment  for  the  first.  However  conformable  this 
maxim  may  be  to  the  legal  standard  of  morality,  the  Supreme 
Court  did  not  so  decide  in  the  case  of  the  Josefa  Segunda.  They 
decided,  that  the  capture  of  a Spanish  vessel  and  negroes  by  a 
privateer,  with  a commission  from  Arismendi,  under  the  Republic 
of  Venezuela,  was  not  piracy ; and  that  the  Josefa  Segunda,  a Span- 
ish vessel,  and  her  cargo  of  negroes,  captured  by  authority  of  such 
a commission,  were  forfeited  by  a subsequent  attempt  of  the  cap- 
tors  to  smuggle  them  into  the  United  States,  though  taken  from 
the  Spanish  owners  only  by  the  Venezuelan  commission  from 
Arismendi.  Now  the  Columbia  had  entered  Baltimore,  and  there 
enlisted  her  crew  under  those  identical  colors  of  Venezuela,  and} 
no  doubt,  with  a commission  from  the  same  Arismendi.  When 
metamorphosed  into  the  Arraganta,  she  took  the  Antelope  and  her 
negroes,  by  a commission  from  Artigas , quite  as  efficient  to  legi- 
timate a prize  as  that  of  Arismendi ; and  John  Smith,  when  cap. 
tured  with  the  Antelope  and  her  negroes,  by  Captain  Jackson,  pro- 
duced this  commission  from  Artigas  as  his  warrant  for  his  posses, 
sion  of  the  vessel  and  the  slaves.  As  between  the  Arraganta  and 
the  Antelope,  therefore,  the  capture  of  the  latter  by  a commission 
from  Artigas  was  not  piratical  but  belligerent,  it  did  divest  the 
Spanish  owners  of  the  property  and  vest  it  in  the  captors,  at  least 
sufficiently  to  make  it  forfeitable  by  their  subsequent  attempt  to 
smuggle  it  into  the  United  States;  and  the  decision  of  the  Su- 
preme Court,  in  the  case  of  the  Josefa  Segunda,  instead  of  sustain- 
ing that  of  the  District  Judge,  in  the  case  of  the  Antelope,  is  an 
authority  point  blank  against  it. 

For  the  allotment  of  142  of  the  negroes  to  the  Portuguese  Vice 
Consul,  there  was  not  even  the  apology  of  a Portuguese  claimant, 
other  than  the  Vice  Consul  himself,  to  the  property.  There  was 
not  a shadow  of  evidence  that  they  were  the  property  of  Portu- 
guese subjects,  and  none  were  ever  found  to  claim  them.  He  took 
the  testimony  of  the  capturing  crew,  that  some  of  them  were  taken 
from  vessels  under  Portuguese  colors  ; and  as  he  had  no  evidence 
that  Portugal  had  then  prohibited  the  slave  trade,  he  took  it  for 
granted  that  the  negroes  were  all  slaves,  and,  as  such,  he  decreed 
that  they  should  be  delivered  to  the  Vice  Consul. 

With  regard  to  the  question,  whether  Slavery  was  or  was  not 


105 


contrary  to  the  laws  of  nations,  his  decision  was  such  as  might  he 
expected  from  a judge,  himself  a holder  of  slaves,  in  a land  where 
slavery  has  the  sanction  of  law.  The  question,  as  I have  endea- 
vored to  show,  did  not  belong  to  the  case.  “ But  it  is  contended,” 
(says  the  District  judge)  “ on  the  authority  of  some  recent  deci- 
sions in  the  British  Admiralty  Court,  that  Africans  are  to  be  con- 
sidered free,  until  it  is  shown  that  they  are  slaves,  and  that  the 
burden  of  proof  is  with  those  who  set  up  a claim  to  them.  This 
doctrine  may  he  correct  in  England , since  there  negroes  have  al- 
ways been  held  to  be  free,  except  in  cases  where  they  have  volun- 
tarily entered  into  engagements  binding  them  to  service.  And 
yet,  inconsistent  and  contradictory  as  it  may  be,  slavery  has  been 
recognized  in  all  the  British  American  colonies. 

“ But  it  does  not  appear  to  me  that  I can  admit  the  proposition 
in  the  form  and  manner  in  which  it  is  here  presented.  The  period 
is  not  very  remote  when  all  the  Governments  of  Europe,  and  th 
several  States  of  the  United  States  when  they  were  British  colo* 
nies,  and  many  of  them  after  they  became  independent,  recognized 
slavery.  But  a few  years  have  elapsed  since  the  Government  of 
the  United  States  permitted  her  citizens  to  engage  in  the  African 
trade.  Under  such  a state  of  things,  it  appears  to  me  that  this 
Court  is  bound  to  consider  the  unfortunate  Africans,  when  found 
in  the  possession  of  the  subjects  or  citizens  of  any  Government 
which  has  heretofore  permitted  this  traffic  as  slaves,  until  the  con- 
trary be  shown.  That  this  trade,  however  inhuman  it  may  be,  and 
however  obnoxious  it  is  to  every  benevolent  feeling,  must  now  be 
considered  legal,  notwithstanding  its  injustice,  until  it  is  shown  to 
have  been  prohibited  by  that  Government  whose  subjects  claim 
the  right  of  engaging  in  it. 

“ When  it  shall  have  been  ascertained  that  the  different  Govern- 
ments of  the  civilized  world  have  consented  to  abolish  the  trade 
or  after  it  shall  have  been  ascertained  that  any  particular  State  or 
Government  has  determined  to  abolish  it,  this  Court  would  con- 
sider the  claims  set  up  in  favor  of  Africans  found  in  the  situation 
of  those  before  the  Court,  in  a different  point  of  view.  In  the  one 
case  they  would,  I think , uniformly  be  considered  free,  until  the 
contrary  was  shown  ; in  the  other  case,  they  would  be  so  consi- 
dered when  they  were  found  in  the  possession  of  the  subjects  or 
citizens  of  that  Government  which  had  determined  to  abolish  the 
trade. 


14 


106 


“ If  it  could  be  made  to  appear  to  this  Court  that,  at  the  time 
these  Africans  were  taken  from  the  possession  of  the  Spanish  and 
Portuguese  claimants,  Spain  and  Portugal  had  agreed  to  prohibit 
their  subjects  from  engaging  in  the  trade,  this  Court,  I think , 
would  be  bound  to  restore  to  these  people  their  liberty. 

“ It  is  true  this  Court  will  not  enforce  the  municipal  laws  of 
another  country,  by  punishing  the  subjects  of  that  country  for  the 
infraction  of  them;  hut  this  Court  would  feel  hound  to  respect  the 
rights  of  Africans  no  less  than  it  would  respect  the  rights  of  any 
other  class  of  persons.  Spain,  however,  had  not,  at  the  time  I am 
speaking  of,  abolished  the  trade  to  Africa,  although  she  had  placed 
it  under  certain  restrictions.  Can  it  be  permitted  to  this  Court  to 
examine  the  commercial  regulations  or  the  conventional  engage- 
ment  of  Spain  1” 

It  is  unnecessary  further  to  repeat  verbatim  et  literatim  this 
argument  of  the  District  judge  to  sustain  his  decree.  Every  word 
and  letter  of  it  teems  with  anxiety  to  sustain  the  institution  of 
Slavery,  and  to  prostrate  instead  of  enforcing  the  laws  of  the 
United  States  for  the  suppression  of  the  slave  trade.  What  he 
calls  certain  restrictions  placed  on  the  trade  by  Spain,  was  the  to- 
tal prohibition  of  it  north  of  the  equator,  even  then  stipulated  by 
Spain  in  a treaty  with  Great  Britain,  and  enacted  accordingly  by 
her  law.  But  what  of  that  ? The  judge  admits  that  the  trade  is 
inhuman,  that  it  is  obnoxious  to  every  benevolent  feeling,  but  he  is 
bound  to  consider  it  legal,  notwithstanding  its  injustice,  because 
many  years  before  it  had  been  practised  by  Great  Britain,  and  not 
many  years  before  by  the  United  States  themselves.”  Is  this  rea- 
soning for  a Court  of  Justice  1 When  all  the  civilized  nations  of 
the  earth  shall  have  abolished  the  African  slave  trade,  the  judge 
thinks  that  captured  Africans  would  be  considered  free,  unless 
proved  to  be  slaves:  and  if  Spain  and  Portugal  should  abolish  the 
slave  trade,  he  thinks  the  burden  of  proof  that  negroes  captured  in 
their  vessels  were  slaves,  would  rest  upon  their  captors.  In  that 
case,  the  Court  would  respect  the  rights  of  Africans  as  much  as 
those  of  any  other  class  of  persons  ; but,  until  then,  how  could 
the  Court  be  permitted  to  examine  into  treaty  stipulations  of  Spain, 
or  into  any  restriction  imposed  by  Spain  upon  the  traffic  of  her 
subjects  in  slaves? 

Such  was  the  reasoning  of  a slave-holding  judge  upon  slavery 
and  the  slave  trade,  and  by  such  reasoning  did  he,  out  of  two  hun- 


107 


dred  and  twelve  Africans,  forfeit  to  the  United  States,  to  receive 
from  them  the  blessing  of  freedom,  and  restoration  to  their  native 
country,  reduce  the  number  who  should  enjoy  that  privilege  to 
seven  individuals,  consigning  all  the  rest  to  perpetual,  hopeless 
Spanish  and  Portuguese  slavery  ! — Seven  freemen  to  two  hundred 
and  five  slaves ! ,.)t 

The  appeal  from  these  decrees  to  the  Circuit  Court  of  the  United 
States  came  up  before  Judge  William  Johnson,  in  May,  1821.  His 
opinions  differed  toto  ccelo  from  those  of  the  District  judge.  He 
increased  the  number  of  the  Africans  to  be  liberated,  as  survivors 
of  the  twenty-five  taken  from  the  American  vessels,  from  seven  to 
sixteen  : he  rejected  the  incredible  testimony  of  the  pirate,  John 
Smith,  that  while  the  mortality  of  the  whole  cargo  of  negroes  had 
averaged  not  more  than  one  in  three,  the  number  of  deaths  among 
those  taken  from  the  American  vessel  had  amounted  to  two-thirds 
of  the  whole.  He  reversed  the  decree  of  the  District  judge,  which 
had  allotted  one  hundred  and  forty-two  negroes  to  the  Portuguese 
Vice  Consul ; and  reserved  his  claim  for  further  proof,  which  never 
was  produced.  He  reduced  the  allowance  of  salvage  to  Captain 
Jackson,  and  the  crew  of  the  revenue  cutter,  to  fifty  dollars  a head 
for  the  negroes  to  be  delivered  to  the  Spanish  Vice  Consul,  and 
expressed  a strong  doubt  whether  it  was  a case  for  salvage  at  all. 
He  intimated,  very  significantly,  an  opinion,  that  if  a claim  had 
been  interposed  by  an  agent  of  Venezuela,  or  of  the  Oriental  Re- 
public, the  capture  of  the  Antelope,  by  Captain  Jackson,  must  have 
been  pronounced  illegal — a mere  marine  trespass — punishable  in 
damages  rather  than  rewardable  for  salvage  ,•  and  yet  he  allowed 
him  a salvage  of  fifty  dollars  a head  for  the  negroes  surrendered 
to  the  Spanish  Vice  Consul.  He  concurred,  however  in  the  most 
exceptionable  of  all  the  opinions  of  the  District  judge  ; namely, 
that  because  John  Smith  had  no  forfeitable  interest  in  the  Antelope 
and  in  the  negroes,  originally  belonging  to  Spanish  owners,  but 
then  in  his  possession,  and  which  he  was  when  captured,  in  the 
act  of  smuggling  into  the  United  States  ; therefore  they  were  not 
forfeited  at  all,  and  must  be  delivered  up  to  the  Spanish  Vice  Con- 
sul. The  judge  of  the  Circuit  Court,  sitting  alone,  after  stating 
the  circumstances  of  the  capture  by  Captain  Jackson,  and  the 
claims  of  the  respective  parties,  promptly  and  without  hesitation 
pronounces,  that  John  Smith  was  taken  in  the  act  of  violating  the 
laws  of  the  United  States  for  the  suppression  of  the  slave  trade  $ 


108 


and  that,  “ if  the  case  rested  here  there  would  be  no  difficulty  in 
adjudging  the  vessel  forfeited,  for  taking  these  Africans  on  board 
at  sea,  with  intent  to  dispose  of  them  as  slaves.  But  this,  although 
perhaps  literally  within  the  provisions  of  the  statute,  is  obviously 
not  within  the  intent  and  meaning .”  Why  perhaps , literally  with- 
in the  provisions  of  the  statute  'l  No  reader  of  the  English  lan- 
guage can  read  the  provisions  of  the  statute  and  entertain  a doubt 
that  they  extend  literally  to  the  case — why  not  within  its  intent 
and  meaning'?  Never  was  an  obiter  dictum  of  a judge  more  per- 
emptory or  more  gratuitous  ! There  is  not  a word,  not  a letter  in 
the  statute  to  authorize  the  intention  of  shielding  from  forfeiture 
a slave  trading  smuggler,  because  the  captain  was  not  her  owner. 
The  forfeiture  attachestothe  action , the  violation  of  the  laws  against 
the  slave  trade,  and  to  the  instrument  used  for  that  violation,  with, 
out  inquiring  to  whom  that  instrument  belongs.  The  mischief  to 
be  remedied  by  the  law,  was  the  introduction  of  African  slaves  into 
the  United  States. — The  vessel  is  the  instrument  with  which  the 
violation  of  the  law  was  effected,  and  by  which  the  forfeiture  was 
incurred.  Neither  justice  nor  policy  could  require  an  exemption 
from  the  forfeiture,  because  the  captain  in  possession  of  the  vessel 
and  employing  her  in  violation  of  the  law,  was  not  her  lawful 
owner.  The  judge  says,  there  are  reiterated  decisions  of  the 
American  courts,  that  a capture  made  under  an  illegal  American 
outfit  is  not  belligerent,  but  void,  and  producing  no  change  of 
right ; and  from  this  it  follows,  that  Smith  had  no  interest  on  which 
the  forfeiture  inflicted  by  law  for  this  offence  could  attach.  The 
judge  names  no  one  of  these  reiterated  decisions,  and  we  have 
seen  that  the  only  one  specifically  cited  by  the  District  judge,  in 
support  of  the  same  principle,  was  a clear  authority  against  it. 
There  were  no  doubt  decisions  that  captures  of  friendly  foreign 
vessels,  by  American  privateers  illegally  fitted  out  in  our  ports, 
and  bearing  South  American  commissions,  did  not  so  divest  the 
property,  but  that  it  might  be  restored  by  our  courts,  in  contro- 
versy between  the  captors  and  the  original  owners — but  that  the 
laws  of  the  United  States,  prescribing  penalties  of  forfeiture  for 
crimes,  should  be  violated  with  impunity,  because  the  slave  smug- 
gler had  stolen  the  instrument  with  which  he  committed  the  crime ! 
No ! I trust  the  Antelope  is,  and  will  for  ever  remain,  the  solitary 
case  in  which  such  a principle  can  claim  the  sanction  of  the  courts 
of  the  United  States  ! 


109 


The  wild  and  glaring  inconsistency  not  only  between  the  opin- 
ions and  decrees  of  the  District  and  Circuit  Courts  of  the  United 
States,  in  the  case  of  the  Antelope,  but  between  the  opinions  and 
decrees  of  each  of  those  Courts  and  itself  discloses  in  crystal 
transparency  an  internal  conflict  of  mind  between  the  duty  of 
suppressing  the  African  slave  trade,  and  the  desire  to  maintain 
and  fortify  the  institution  of  slavery,  little  auspicious  to  the  com- 
posure of  justice  or  to  the  impartial  exercise  of  the  judicial  facul- 
ty. Both  the  Judges  profess  a sentimental  abhorrence  of  the 
trade.  The  Circuit  Judge  discusses  at  great  length  the  question 
Avhether  the  slave  trade  is  contrary  to  the  Law  of  Nations.  He 
admits  that  the  British  Court  of  Admiralty  have  of  latter  years 
asserted  a doctrine  of  this  nature  ; hut  after  commenting  sarcasti- 
cally upon  the  motive,  of  the  British  Judges  and  Government,  and 
descanting  upon  mental  dependence,  and  interference  with  the 
family  concerns  of  others,  in  which  no  nation  has  a right  to  vol- 
unteer, he  quotes  a passage  from  the  decision  of  the  British  Court 
in  the  case  of  the  Amedee  [Acton,  240,]  and  says,  “ I must  until 
better  advised  assume  an  opposite  language.” 

“ I feel,”  says  he,  “ no  inclination  to  justify  or  even  palliate  the 
trade.  I thank  God  I have  lived  to  see  its  death-blow.  But  it 
was  from  religion  or  policy,  not  from  national  humanity,  that  the 
blow  was  received.  On  the  contrary,  British  policy  struggled 
against  the  effort  to  abolish  it,  and  all  the  efforts  of  the  Quakers) 
the  Methodists  and  Mr.  Wilberforce  proved  abortive  until  the  hor- 
rors acted  in  St.  Domingo  opened  the  eyes  of  Government  to  con- 
sequences that  it  became  political  to  guard  against.  From  that 
time,  philanthropy  like  the  pent  up  vapor,  began  freely  to  diffuse 
itself,  and  extended  its  spread  even  to  the  British  Court  of  Admi- 
ralty.” 

“ That  slavery,  (says  again  the  Judge  of  the  Circuit  Court,)  is 
a national  evil  no  one  will  deny  except  him  [he]  who  would  main- 
tain that  national  wealth  is  the  supreme  national  good.  But  what- 
ever it  be,  it  was  entailed  upon  us  by  our  ancestors,  and  actually 
provided  for  in  the  constitution  first  received  from  the  Lords 
Proprietors  under  which  the  southern  colonies  were  planted. 
During  the  Royal  government  it  was  fostered  as  the  means  of 
improving  the  colonies,  and  affording  a lucrative  trade  to  the 
mother  country,  and  however  revolting  to  humanity , may  be  the 


110 


reflection,  the  laws  of  any  country  on  the  sqbject  of  the  slave 
trade  are  nothing  more  in  the  eyes  of  any  other  nation  than  a 
class  of  the  trade  laws  of  the  nation  that  enacts  them.” 

Both  the  Judges  acknowledge  the  inherent,  inextinguishable 
wickedness  of  the  trade,  and  both  have  an  invincible  repugnance 
to  consider  it  contrary  to  the  laws  of  nations.  The  Judge  of  the 
District  Court  admits  that  the  doctrine  that  Africans  taken  at  sea 
must  be  presumed  to  be  free,  until  proved  to  be  slaves,  may  be 
correct  in  England , but  cannot  entirely  recognize  it  in  the  State 
of  Georgia.  The  Judge  of  the  Circuit  Court,  repudiates  it  alto- 
gether— says  he  must  until  better  advised  hold  opposite  language — 
assails  with  great  bitterness  the  decision  of  Sir  William  Grant 
in  the  case  of  the  Amedce  : thanks  God  that  he  has  lived  to  see 
the  death  blow  of  the  African  slave  trade ; but  allows  no  credit 
to  Great  Britain  on  the  score  of  humanity  for  striking  it.  No  ! it 
was  religion  or  policy.  The  horrors  of  the  scenes  in  St.  Domin- 
go had  alarmed  the  British  Government  for  the  safety  of  their 
West  Indian  colonies,  and  so  the  pent  up  vapor  of  philanthropy 
was  let  loose  and  extended  even  to  the  British  Courts  of  Vice  Ad- 
miralty. As  for  slavery,  every  one  knows  it  an  evil,  but  it  was  en- 
tailed upon  us  by  our  ancestors  ; it  was  provided  for  by  the  consti- 
tution granted  by  the  Lords  Proprietors  ; it  was  encouraged  from 
motives  of , policy  by  the  Royal  Government,  and  what  right  has 
any  one  to  question  our  practice  of  it  now  1 It  was  once  lawful — 
who  shall  say  it  shall  not  be  lawful  forever  % 

Upon  the  tone  of  this  judicial  argumentation  I shall  not  in- 
dulge myself  in  commenting ; but  in  comparing  the  spirit  of  the 
reasoning  of  these  two  judges  with  that  of  Sir  William  Grant  in 
the  decision  which  they  reject  and  oppose,  how  stands  the  ac- 
count of  moral  principle  ? The  reasons  of  the  British  Judge 
glow  with  the  flame  of  human  liberty ; those  of  the  American 
Judges  are  wedged  in  thrilling  regions  of  thick  ribbed  ice.  Vitu- 
peration of  the  slave  trade  in  words,  with  a broad  shield  of  pro- 
tection carefully  extended  over  it  in  deeds.  Slavery  acknowl- 
edged an  evil,  and  the  inveteracy  of  its  abuse  urged  as  an  unan- 
swerable argument  for  its  perpetuity  : the  best  of  actions  imput- 
ed to  the  worst  of  motives,  and  a bluster  of  mental  energy  to 
shelter  a national  crime  behind  a barrier  of  national  indepen- 
dence ; these  are  the  characteristics  exhibited  by  American  in 
collision  with  British  Admiralty  Courts.  Or  again,  examine  the 


Ill 


respective  opinions  and  decrees  in  their  bearing  upon  the  trade 
itself : those  of  the  British  Court  went  directly  to  its  suppres- 
sion; those  of  the  American  Courts,  to  its  encouragement,  secu- 
rity and  promotion.  The  British  Court  has  at  least  the  consisten- 
cy of  harmonizing  practice  and  profession.  The  American 
Courts  profess  humanity  and  practice  oppression. 

The  decrees  of  the  American  Circuit  Court  are  if  possible  more 
extraordinary  than  its  opinions.  After  deciding  that  the  Negroes 
taken  by  the  Arraganta  in  the  Antelope,  and  from  the  Portuguese 
vessels  shall  be  delivered  to  the  Spanish  and  Portuguese  Vice 
Consuls,  because  he  must  maintain  that  it  is  a question  altogeth- 
er inter  alios , whether  the  Spanish  and  Portuguse  nations  had  au- 
thorized the  traffic  in  which  their  vessels  were  engaged,  the 
Judge  adds  : “Not  so  as  to  the  American  vessel.  I have  a law 
to  direct  me  as  to  that,  and  the  slaves  taken  out  of  her  must  be 
liberated.”  The  laws  had  literally  directed  that  all  the  Negroes 
whom  John  Smith  had  attempted  to  smuggle  into  the  United 
States  for  sale,  should  be  liberated,  but  the  Judge  had  pronounced 
that  this  was  not  its  intent  and  meaning.  But  now  another  diffi- 
culty occurs.  No  competent  witness  can  tell  which  of  the  survi- 
ving Negroes  were  taken  from  the  American  vessels,  which  from 
the  Portuguese  vessels,  and  which  from  the  Antelope.  The  indi- 
viduals belonging  to  each  of  the  three  vessels  cannot  be  identi- 
fied. How  shall  he  distribute  his  doom  of  freedom  and  of  slave- 
ry among  the  prize  goods  and  the  pirated  merchandize  of  John 
Smith  I With  a full  conciousness  of  the  gross  and  glaring  injus- 
tice of  the  decree  he  says,  the  lot  must  decide  ! Where  did  he 
get  his  law  for  that  I He  says  he  has  a law  to  direct  him,  and  he 
'flies  in  the  face  of  that  law  to  enslave  hundreds  and  emancipate 
sixteen  human  beings  on  the  Cast  of  a die.  Let  me  do  no  wrong 
to  his  words — hear  them. 

“ I would  that  it  were  in  my  power  to  do  perfect  justice  in  their 
behalf.  But  this  is  now  impossible.  I can  decree  freedom  to  a 
certain  number,  but  I may  decree  that  to  A,  which  is  the  legal 
right  of  B.  It  is  impossible  to  identify  the  individuals  who  were 
taken  from  the  American  vessel,  and  yet  it  is  not  less  certain 
that  the  benefit  of  this  decree  is  their  right  and  theirs  alone.  Poor 
would  be  the  consolation  to  them  to  know  that  because  we  could 
not  identify  them  we  had  given  away  their  freedom  to  others. — 
Yet  shall  we  refuse  to  act  because  not  gifted  with  the  power  of 


112 


divination  1 We  can  only  do  the  best  in  our  power.  The  lot 
must  decide  their  fate,  and  the  Almighty  will  direct  the  hand  that 
acts  in  the  selection.  But  I cannot  consent  to  reduce  this  num- 
ber from  twenty-five  to  nine,  [to  seven,]  for  this  depends  upon 
testimony  that  was  interested  to  deceive,  since  in  those  twenty- 
five,  Smith  could  have  no  hope  to  sustain  his  claims  though  he 
might  succeed  as  to  the  residue.  The  reduction  of  the  number 
must  therefore  be  averaged  upon  a scale  with  the  rest,  and  as  they 
consisted  of  twenty-three  men  and  two  boys,  the  lot  must  select 
them  accordingly  from  the  men  and  boys. 

“ Some  doubts  have  been  stated  as  to  the  national  character  of 
the  vessel  and  as  to  the  Spanish  and  Portuguese  interest  in  the 
slaves.  On  the  vessel  I entertain  no  doubt.  She  was  captured  as 
Spanish,  and  the  evidence  is  sufficient  to  prove  the  Spani  sh  inter- 
est in  her — and  the  slaves  taken  on  board  of  her,  must  necessarily 
follow  her  fate.  But  I am  induced  to  think  that  the  evidence  pre- 
ponderates to  prove  that  there  were  but  ninety-three,  and,  that 
number  must  also  be  reduced  by  the  general  scale  of  loss.  Con- 
cerning the  residue,  the  evidence  appears  so  conclusive,  that  re- 
luctant as  I feel  to  keep  the  case  open  I cannot  adjudge  them  to 
the  Portuguese  Consul,  without  further  proof.’* 

In  examining  the  claim  of  Capt.  Jackson  to  salvage,  the  judge  be- 
comes exceedingly  doubtful  whether  it  is  a case  for  salvage  at  all, 
and  enters  a caveat  against  his  own  decree  for  allowing  it.  He 
thinks  if  a Venezuelan  agent  had  interposed  a claim  to  the  proper- 
ty as  prize  of  war,  he  should  have  been  still  more  puzzled  how 
to  shape  his  decree  than  he  was.  He  does  not  appear  to  be  at  all 
aware  that  if  a Venezuelan  agent  could  have  claimed  the  proper- 
ty as  prize  of  war  there  could  have  been  no  Spanish  claimant  to 
whom  it  could  have  been  restored.  The  decree  of  restoration  to 
Spanish  owners  was  therefore  ipse  facto  equivalent  to  a decree  for 
salvage,  the  quantum  of  which  alone  remained  for  consideration. 
His  caveat  against  his  allowance  for  salvage,  was  therefore  a 
caveat  against  his  whole  decree,  and  thus  far  was  an  approach 
to  the  definition  of  justice — Jus  suum  cuique. 

The  decrees  of  the  Circuit  Court  (for  there  were  two)  like  the 
state  of  mind  disclosed  by  these  opinions  of  the  judge,  were_a 
chaos  of  confusion.  By  the  first,  delivered  on  the  11th  of  May, 
1823,  the  Decree  of  the  District  Court,  so  far  as  related  to  the 
vessel,  the  Antelope,  was  affirmed,  and  so  far  as  related  to  the 


113 


slaves  imported  in  her  was  reversed  and  annulled.  The  District 
Court  had  decreed  the  restoration  of  the  Antelope  to  the  Spanish 
claimants,  on  the  ground  that  she  had  not  been  forfeited  to  the 
United  States,  for  the  violation  of  the  laws  for  the  suppression  of 
the  slave  trade.  She  had  not  been  forfeited,  though  taken  by 
Captain  Jackson  in  the  act  of  smuggling  into  the  United  States 
for  sale  near  three  hundred  Africans,  and  though  the  law  literally 
declares  all  Africans  thus  imported  free,  and  the  vessel  in  which 
they  are  imported  forfeited  to  the  United  States.  From  this  for- 
feiture the  Decree  of  the  District  Court,  exempted  the  Antelope, 
because  before  the  commission  of  this  smuggling  piracy  she  had 
been  taken  by  another  act  of  piracy,  from  certain  virtuous  Spanish 
slave  traders,  whose  property  in  her,  and  consequently  in  the 
slaves  with  which  she  was  laden,  was  too  sacred  to  be  divested 
either  by  piratical  capture  or  by  the  laws  of  the  United  States 
against  the  importation  of  slaves,  or  against  the  African  slave  trade. 
With  this  part  of  the  Decree  of  the  District  Court,  the  judge  of 
the  Circuit  Court  concurs.  The  laws  of  the  United  States  for  the 
suppression  of  the  execrable  slave  trade,  and  against  the  importa- 
tion of  African  slaves  are  baffled,  defeated,  prostrated,  nullified — 
three  hundred  wretched  victims  of  that  trade,  are  deprived  of  the 
benefit  of  that  just  and  generous  provision  that  the  very  act  of 
importing  them  shall  operate  in  their  favor  as  an  act  of  emancipa- 
tion. They  are  re-consigned  to  hopeless  and  perpetual  slavery, 
from  mere  reverence  for  the  property  of  Spanish  slave  traders  ! 
Well  might  such  a decision  divide  the  opinions  of  the  judges  of 
the  Supreme  tribunal  when  it  came  up  to  them  for  adjudication. 
Well  might  Chief  Justice  Marshall  declare  that  upon  this  point 
no  principle  was  settled , and  well  may  every  friend  of  human  li- 
berty, and  every  sincere  wisher  for  the  suppression  of  that  de- 
tested traffic  indignantly  deny  that  the  case  of  the  Antelope  can 
ever  be  cited  as  authority  for  any  such  principle  of  law. 

But  as  the  Circuit  Court,  reversed  and  annulled  every  part  of 
the  decree  of  the  District  Court  for  the  disposal  and  distribution 
of  the  slaves,  so  the  final  decree  of  the  Supreme  Court  passed 
the  same  sweeping  sentence  of  reversal,  upon  all  the  dispositions 
of  the  Circuit  Court,  not  excepting  that  reliance  upon  an  Almighty 
hand  to  direct  that  designation  by  lot,  which  was  to  give  to  one 
man  what  was  the  right  of  another,  and  to  emancipate  a slave  as  an 
equivalent  for  enslaving  a freeman. 

15 


114 


The  judge  of  the  Circuit  Court  at  first  decreed  the  manner,  in 
which  the  sixteen  freemen  should  be  drawn  by  lot  from  the  whole 
surviving  cargo  of  the  Antelope,  as  taken  by  Captain  Jackson. 
He  allowed  a certain  average  portion  of  the  survivors  of  93  to  the 
whole  number;  to  be  delivered  to  the  Spanish  Vice  Consul,  toge- 
ther with  the  proceeds  of  the  vessels,  and  with  suitable  deduc- 
tions for  the  salvage,  forthwith — and  he  reserved  for  further  con- 
sideration, and  further  evidence,  till  the  next  term  of  the  court, 
the  final  distribution  of  the  residue  of  the  slaves  between  the 
Spanish  and  Portuguese  Vice  Consuls. 

On  the  16th  of  July,  1821,  the  designation  was  accordingly  made 
by  lot  of  the  sixteen  persons  drawn  from  204,  and  delivered  to  the 
marshal  of  the  United  States  to  abide  the  order  of  the  court — that 
is,  for  emancipation.  It  does  not  appear  that  the  Spanish  Vice 
Consul  received  those  which  had  been  provisionally  assigned  to 
him.  On  the  27th  day  of  December,  1821,  the  judge  of  the 
Circuit  Court  held,  together  with  Jeremiah  Cuyler,  the  newly  ap- 
pointed judge  of  the  District  Court  in  the  place  of  William  Davis 
deceased,  a special  court,  at  which  the  case  was  argued,  and  fur- 
ther evidence  filed — and  on  the  next  day,  the  court  “ Ordered  and 
decreed,  that  the  residue  of  the  negroes  imported  in  the  General 
Ramirez  [Antelope]  be  divided  between  the  Spanish  and  Portu- 
guese claimants  in  the  ratio  of  one  hundred  and  sixty-six  on  be  - 
half  of  the  Spanish  claimants,  and  one  hundred  and  thirty  on  be- 
half of  the  Portuguese  claimants,  and  that  they  be  delivered  up 
to  the  agents  of  the  individuals  as  soon  as  their  respective  powers 
of  attorney  shall  be  duly  authenticated  and  filed  with  the  clerk  of 
this  court ; and  they  shall  respectively  comply  with  the  Decretal 
Order  of  this  court,  in  paying  the  expenses  incurred  on  said  ne- 
groes in  the  ratio  above  stated,  and  in  giving  bond  and  secu. 
rity  as  therein  directed  for  transporting  them  beyond  the  limits  of 
the  United  States  to  some  permitted  port,  allowing  however  six 
months  from  the  date  of  the  bond  instead  of  three  months  as  in 
that  decretal  order  aforesaid,  and  that  the  proceed  sales  of  the 
vessel,  after  deducting  the  costs  of  court,  exclusive  of  marshal’s 
bills  for  maintenance,  be  paid  over  to  the  Spanish  claimants.” 

On  the  2d  of  January,  1822,  the  District  Attorney  of  the  United 
States,  appealed  in  their  behalf  to  the  Supreme  Court  of  the  Unit- 
ed States  from  so  much  of  the  said  decree,  of  the  said  Circuit 
Court  as  decreed  the  said  African  negroes  to  the  Portuguese  Vice 
Consul- 


115 


And  thus,  in  February,  1822,  the  case  of  the  Antelope,  and  her 
cargo,  came  up  for  adjudication  of  the  Supreme  Court  of  the 
United  States,  the  result  of  which  is  reported  in  the  10th,  11th, 
and  12th  volumes  of  Wheaton’s  Reports. 

Three  long  years  passed  away  before  the  first  judgment  of  the 
court  in  the  case  was  pronounced.  Nearly  two  years  before  had 
elapsed  from  the  capture  of  the  Antelope  by  Captain  Jackson. 
For  little  short  of  the  space  of  five  years,  nearly  three  hundred 
captured  Africans  had  been  kept  as  prisoners  of  the  United  States, 
and  to  abide  the  decision  of  their  tribunals  for  the  enjoyment  of 
their  inalienable  right  to  liberty.  What  had  they  been  doing, 
during  this  long  captivity  ? They  had  been  maintained  at  the 
cost  of  the  United  States,  we  shall  see  hereafter  to  what  tune. 
While  the  slow,  solemn  and  majestic  march  of  the  law  was  pro- 
gressing in  the  search  “ for  the  legal  standard  of  morality”  to  fix 
the  destiny  of  these  human  victims,  time  and  chance  had  disposed 
of  them  more  mercifully  than  the  decrees  of  the  District  or  of 
the  Circuit  Court.  The  marshal  had  bound  most  of  them  out  to 
labor  in  the  sweat  of  their  brows,  at  the  erection  of  fortifications, 
for  the  defence  of  the  liberties  of  this,  our  beloved  country.  The 
judges  who  passed  upon  the  fate  of  these  their  fellow  men — the 
wives — the  children — the  property — the  neighbors — the  country 
of  those  judges  were  armed  in  panoply  against  foreign  aggres- 
sion by  the  daily  labor  of  these  stolen  Africans,  whose  lives,  and 
liberty  American  judges  were  committing  by  the  legal  standard  of 
morality  to  the  cast  of  a die.  During  those  five  years  it  may  be 
well  conjectured  that  the  condition  of  those  captives  of  the  An- 
telope thus  employed  was  less  rigorous  and  afflicted  than  it  was 
made  by  the  lottery  judgment  of  the  court. 

The  judgment  of  the  Supreme  Court  in  1825,  reversed  this  lot- 
tery judgment  of  the  Circuit  Court.  It  reversed  the  whole  allot, 
ment  of  one  hundred  and  thirty  to  the  Portuguese  Vice  Consul, 
and  awarded  to  them  the  blessing  of  liberty  intended  for  them 
by  the  law,  and  yet  so  harshly  denied  them  by  the  decrees  of 
the  courts  below.  It  reduced  the  number  to  be  delivered  to  the 
Spanish  claimants  from  a ratio  of  166  to  93  to  the  whole  number, 
and  vigorously  exacted  proof  to  the  satisfaction  of  the  Circuit 
Court  of  the  identity  of  every  individual  to  be  delivered  up,  as 
having  been  of  the  number  taken  "by  the  Arraganta  in  the  Ante- 
lope. The  allowances  of  salvage  and  of  gratuity  to  Captain  Jack* 


116 


son  and  the  crew  of  the  Revenue  Cutter  were  confirmed.  One 
step  further  and  the  case  of  the  Antelope  would  have  conferred 
unfading  glory  on  the  Supreme  Court.  One  step  more,  and  the 
heartless  sophistry  would  have  been  silenced,  and  the  cold  blood- 
ed apathy  to  human  suffering  would  have  been  stung  into  sensi- 
bility, which  delivered  up  to  Spanish  slave  traders,  a vessel,  for- 
feited by  the  just  severity,  and  thirty-nine  Africans  emancipated 
by  the  benignty,  of  the  laws  of  this  Union  for  the  suppression  of 
the  African  slave  trade. 

That  step  was  not  taken  ; there  lacked  one  voice  in  a divided 
court  to  reverse  the  whole  of  that  decree  of  the  Circuit  Court  of 
which  so  many  parts  were  annulled.  One  obnoxious  principle 
was  left  to  have  its  sway  in  that  particular  case,  because  there 
wanted  a casting  vote  to  reverse  it — but  Chief  Justice  Marshall 
himself,  in  announcing  the  affimation  of  the  sentence  on  this 
point  of  the  Circuit  Court,  guarded  against  any  and  every  future 
attempt  to  alledge  it  as  an  authority  by  explicitly  declaring  that 
in  this  judgment  of  the  court  no  principle  was  settled. 

The  opinion  delivered  by  him  on  this  first  decision  of  the  case 
in  the  Supreme  Court,  must  be  considered  as  that  of  the  Chief 
Justice  himself.  It  is  in  a tone  entirely  different  from  that  in 
which  the  judges  of  the  lower  courts  had  indulged  them- 
selves. It  contains  no  angry  invective,  no  sneering  sar- 
casm, no  direct  defiance,  on  the  motives  of  the  British  gov- 
ernment, and  the  solicitude  of  the  British  tribunals,  for  the  sup- 
pression of  the  slave  trade.  It  states  with  a sincere  and  painful 
effort  of  impartiality  the  reasons  for  and  against  the  principle 
that  the  trade  is  contrary  to  the  laws  of  nations.  It  admits 
and  emphatically  declares  it  contrary  to  the  laws  of  nature.  It 
cites  and  analyzes  the  general  decisions  upon  the  same  point  in  the 
British  Courts  of  Admiralty,  and  examines  them  with  freedom, 
but  without  asperity.  The  Chief  Justice  says  that  as  no  prin- 
ciple was  settled  by  the  affirmance  of  the  decree  of  the  Circuit 
Court,  the  judges  had  concluded  not  to  assign  their  respective 
reasons  for  their  conflicting  opinions  ; but  as  to  him  was  assigned 
the  duty  of  pronouncing  the  decree  of  the  court,  his  argument 
was  necessarily  on  the  side  of  that  division  which  sustained  the 
decree  of  the  Circuit  Court,  and  consequently  there  is  no  coun- 
teracting opinion  upon  the  records  to  balance  it.  But  it  almost 
balances  itself.  The  argument  with  much  hesitation  concludes 


117 


that  the  African  slave  trade  is  not  contrary  to  the  Law  of  Nations 
— but  it  begins  with  admitting,  also  with  hesitation,  that  it  is  con- 
trary to  the  law  of  nature.  He  says — “ That  it  is  contrary  to  the 
law  of  nature  will  scarcely  be  denied.  That  every  man  has  a na- 
tural right  to  the  fruits  of  his  own  labor,  is  generally  admitted  ; 
and  that  no  other  person  can  rightfully  deprive  him  of  those  fruits, 
and  appropriate  them  against  his  will  seems  to  be  the  necessary 
result  of  this  admission. 

“ Seems,  Madam — Nay  it  is — I know  not  seems.” 

Surely  never  was  this  exclamation  more  suitable  than  on  this 
occasion  ; hut  the  cautious  and  wary  manner  of  stating  the  moral 
principle,  proclaimed  in  the  Declaration  of  Independence,  as  self- 
evident  truth , is  because  the  argument  is  obliged  to  encounter  it 
with  matter  of  fact.  To  the  moral  principle  the  Chief  Justice 
opposes  general  usage — fact  against  right.  “ From  the  earliest 
times  war  has  existed,  and  war  confers  rights  in  which  all  have 
acquiesced.  Among  the  most  enlightened  nations  of  antiquity, 
one  of  these  was,  that  the  victor  might  enslave  the  vanquished 

“ Slavery,  then,  has  its  origin  in  force  ; but  as  the  world  has 
agreed  that  it  is  a legitimate  result  of  force,  the  state  of  things 
which  is  thus  produced  by  general  consent  cannot  be  pronounced 
unlawful. 

“ Throughout  Christendom,  this  harsh  rule  has  been  exploded, 
and  war  is  no  longer  considered  as  giving  a right  to  enslave  cap- 
tives. But  this  triumph  of  humanity  has  not  been  universal.  The 
parties  to  the  modern  law  of  nations  do  not  propagate  their 
principles  by  force  ; and  Africa  has  not  yet  adopted  them. 
Throughout  the  whole  extent  of  that  immense  continent,  so  far 
as  we  know  its  history,  it  is  still  the  law  of  nations  that  prison- 
ers are  slaves.  Can  those  who  have  themselves  renounced  this  law , 
be  permitted  to  participate  in  its  effects,  by  purchasing  the  beings  who 
are  its  victims  l 

“ Whatever  might  be  the  answer  of  a moralist  to  this  question, 
a jurist  must  search  for  its  legal  solution  in  those  principles  of 
action  which  are  sanctioned  by  the  usages,  the  national  acts,  and 
the  general  assent,  of  that  portion  of  the  world  of  which  he  con- 
siders himself  a part,  and  to  whose  law  the  appeal  is  made.  If 
we  resort  to  this  standard  as  the  test  of  international  law,  the 
question  as  has  already  been  observed,  is  decided  in  favor  of  the 
legality  of  the  trade.  Both  Europe  and  America  embarked  in  it ; 


118 


and  for  nearly  two  centuries,  it  was  carried  on  without  opposition 
and  without  censure.” 

With  all  possible  reverence  for  the  memory  of  Chief  Justice 
Marshall,  and  with  all  due  respect  for  his  argument  in  this  case,  I 
must  here  be  permitted  to  say,  that  here  begins  its  fallacy.  He 
admits  that  throughout  all  Christendom,  the  victors  in  war  have 
no  right  to  enslave  the  vanquished.  As  between  Christian  nations 
therefore,  slavery  as  a legitimate  consequence  of  war  is  totally 
abolished.  So  totally  abolished  that  slaves  captured  in  war,  can- 
not be  held  by  the  captors,  as  slaves $ but  must  be  emancipated, 
or  exchanged  as  prisoners  of  war. 

But  Africa,  says  the  Chief  Justice,  still  enslaves  her  captives  in 

war,  and  for  nearly  two  centuries,  Europe  and  America  purchased 
African  slaves  without  “ opposition  and  without  censure.”  This 
may  prove  that  the  African  slave-trade  was  heretofore,  not  contrary 
to  the  international  law  of  Europe  and  of  Christendom.  But  how 

was. it,  when  the  Antelope  was  in  judgment  before  Christian  Admi- 
ralty Courts  in  1820-21,  and  ’251  How  is  it  now? 

For  nearly  forty  years  it  has  been  prohibited  by  the  laws  of  the 
United  States,  as  a crime  of  enormous  magnitude — and  when  the 
Antelope  was  tried  by  their  judicial  Courts,  it  was  proclaimed 
piracy,  punishable  with  death — 

It  was  piracy  by  the  laws  of  Great  Britain. 

By  the  10th  Article  of  the  Treaty  of  Ghent,  concluded  on  the 
24th  of  December,  1814,  between  Great  Britain  and  the  United 
States,  the  traffic  in  slaves  had  been  declared  irreconcilable  with 
the  principles  of  humanity  and  justice,  and  both  parties  did  there- 
by stipulate  and  contract  to  use  their  best  endeavors  to  promote 
its  entire  abolition. 

On  the  8th  of  February,  1815,  the  Ambassadors  at  the  Congress 
of  Vienna,  from  Austria,  France,  Great  Britain,  Portugal,  Prussia, 
Russia,  and  Sweden,  had  issued  a Declaration,  “ in  the  face  of 
Europe,  that  considering  the  universal  abolition  of  the  slave-trade 
as  a measure  worthy  of  their  attention,  conformable  to  the  spirit 
of  the  times,  and  to  the  generous  principles  of  their  august 
Sovereigns,  they  are  animated  with  the  sincere  desire  of  concur- 
ring in  the  most  prompt  and  effectual  execution  of  this  measure, 
by  all  the  means  at  their  disposal,  and  of  acting  in  the  employ- 
ment of  those  means  with  all  the  zeal  and  perseverance  which  is 
due  to  so  noble  a cause.”  And  again, 


119 


“ In  communicating  this  Declaration  to  the  knowledge  of 
Europe,  and  of  all  civilized  countries,  the  said  plenipotentiaries 
hope  to  prevail  on  every  other  Government,  and  particularly  on 
those  which  in  abolishing  the  slave-trade  have  already  manifested 
the  same  sentiments,  to  give  them  their  support  in  a cause,  the 
final  triumph  of  which  will  be  one  of  the  noblest  monuments  of 
the  age  which  embraced  it,  and  which  shall  have  brought  it  to  a 
glorious  termination.” 

On  the  20th  of  May,  1814,  Louis  the  18th,  on  his  first  restora- 
tion, had  stipulated  by  treaty  with  Great  Britain,  to  unite  all  his 
efforts  with  hers,  at  this  then  approaching  Congress  of  Vienna,  to 
induce  all  the  Powers  of  Christendom  to  decree  the  abolition  of  the 
slave-trade , so  that  the  said  trade  should  cease,  universally,  as  it 
should  cease  definitely,  under  any  circumstances,  on  the  part  of 
France,  within  five  years. 

Within  one  year  from  that  time,  the  Emperor  Napoleon,  on  the 
20th  of  March,  1815,  upon  his  return  from  Elba,  within  the  hun- 
dred days  of  his  authority,  decreed  the  immediate  and  total  aboli- 
tion of  the  slave-trade  on  the  part  of  France — which  decree 
Louis  the  18th,  upon  his  second  restoration,  repeated  and  con- 
firmed— and  on  the  20th  of  November,  1815,  a Treaty,  of  which 
the  following  was  one  of  the  Articles,  was  concluded  between 
Great  Britain  and  France. 

“ The  high  contracting  powers,  sincerely  desiring  to  give 
effect  to  the  measures  on  which  they  deliberated  at  the  Congress 
of  Vienna,  relative  to  the  complete  and  universal  abolition  of  the 
slave-trade,  and  having  each  in  their  respective  dominions,  pro- 
hibited without  restriction,  their  colonies  and  subjects  from  taking 
any  part  whatever  in  this  traffic,  engage  to  renew  conjointly  their 
efforts,  with  the  view  of  securing  signal  success  to  those  princi- 
ples, which  they  proclaimed  in  the  Declaration  of  the  8th  of  Feb- 
ruary, 181b,  and  of  concerting  without  loss  of  time,  through  their 
ministers  at  the  Courts  of  London  and  of  Paris,  the  most  effectual 
measures  for  the  active  and  definitive  abolition  of  a commerce  so 
odious  and  so  strongly  condemned  by  the  laws  of  religion  and  of 
nature .” 

Spain  had  not  been  a party  to  the  Declaration  of  the  Allied 
Powers,  at  the  Congress  of  Vienna,  of  8th  of  February,  1815 — but 
in  a treaty  with  Great  Britain,  concluded  on  the  20th  of  August, 
1814,  his  Catholic  Majesty,  concurring  in  the  fullest  manner  in 


120 


the  sentiments  of  his  Britannic  Majesty  with  respect  to  the  in- 
justice. and  inhumanity  of  the  traffic  in  slaves,  stipulated  that  he 
would  take  into  consideration  with  the  deliberation  which  the 
state  of  his  possessions  in  America  demanded,  the  means  of  act- 
ing in  conformity  with  those  sentiments. 

And  on  the  23d  of  September,  1817,  by  a treaty  concluded  be- 
tween the  same  two  powers,  his  Catholic  Majesty  engaged,  that 
the  slave-trade  should  be  abolished  throughout  the  entire  domi- 
nions of  Spain,  on  the  30th  day  of  May,  1820  ; and  that  from  and 
after  that  period,  it  shall  not  be  lawful  for  any  of  the  subjects  of 
the  crown  of  Spain,  to  purchase  slaves,  or  to  carry  on  the  slave- 
trade,  on  any  part  of  the  coast  of  Africa,  upon  any  pretext,  or  in 
any  manner  whatever  ; provided,  however,  that  a term  of  five 
months  from  the  said  date  of  the  30th  of  May,  1820,  should  be 
allowed  for  completing  the  voyages  of  vessels  cleared  out  law- 
fully, previously  to  the  said  30th  of  May. 

A decree  of  the  King  of  Spain,  of  December,  1817,  conformable 
to  the  above  treaty-stipulation,  prohibited  all  Spanish  subjects 
from  engaging  in  the  African  slave-trade,  from  and  after  the  30th 
of  May,  1820. 

The  case  of  the  Antelope  first  came  before  the  District  Court 
of  the  United  States  for  adjudication,  on  the  27th  of  July,  1820. 
At  that  time  the  African  slave-trade  was  forbidden  to  all  Spanish 
subjects  throughout  the  world,  by  a decree  issued  nearly  three 
years  before.  But  the  Antelope  had  been  fitted  out  at  the  Ha- 
vana, upon  her  slave-trading  expedition,  and  had  even  been  cap- 
tured by  the  Arraganta,  before  the  20th  of  May,  1820,  and  conse- 
quently before  the  legal  prohibition  had  taken  effect.  The  cap- 
ture of  her  by  the  Arraganta  had  been  made,  not  for  breach  of 
laws  against  the  slave-trade,  but  as  prize  of  war  under  a commis- 
sion from  the  Oriental  Republic.  It  was  her  captor  who  had  in- 
curred her  forfeiture,  and  the  liberation  of  the  Africans  taken  in 
her  by  the  violation  of  the  laws  of  the  United  States  against  the 
slave-trade — not  by  purchasing  or  shipping  the  negroes  in  Africa, 
but  for  importing  them  into  the  United  States  contrary  to  law. — 
To  the  question  of  that  forfeiture,  that  of  the  original  property  of 
the  vessel  and  cargo  was  altogether  foreign.  That  was  res  inter 
alios , with  which  the  Courts  of  the  United  States  had  nothing  to 
do.  The  smuggler  was  a citizen  of  the  United  States.  He  had 
proprietary  possession  of  the  vessel  and  of  the  negroes,  which  he 


121 


was  smuggling  in  to  be  sold  as  slaves.  It  was  the  identical 
offence  against  which  the  laws  of  Congress  had  provided,  and  the 
negroes  had  by  those  laws,  and  by  the  violation  of  them  commit- 
ted by  John  Smith,  acquired  a right  to  freedom,  infinitely  more 
sacred,  one  would  have  thought,  in  an  American  Court  of  Justice, 
than  the  property  in  and  to  them,  of  the  Spanish  slave-traders 
who  had  kidnapped  or  bought  them  in  Africa,  and  had  not  yet 
consummated  their  property  by  bringing  them  within  the  exclu- 
sive jurisdiction  of  Spain. 

All  the  Courts  of  the  United  States  did  however  think  proper 
to  go  back  to  the  proprietary  right  of  the  Spanish  slave-trader  ; 
and  two  of  them  to  sanctify  that  at  the  expense  of  the  freedom  of 
the  captives,  and  of  the  vital  spirit  of  the  laws  of  the  Union  for 
the  suppression  of  the  African  slave-trade.  This  sacrifice  was 
made,  by  the  District  and  Circuit  Courts  of  the  United  States,  in 
Georgia.  It  was  never  sanctioned  by  the  Supreme  Court  of  the 
Union.  On  this  single  point,  the  judgment  of  the  Circuit  Court, 
was  saved  from  reversal,  by  a divided  Court  ; but  on  all  the  col- 
lateral points  the  decisions  of  both  the  lower  Courts  were  reversed, 
and  on  the  single  point  of  the  Circuit  Court,  affirmed  : the  Chief 
Justice  in  affirming  it  gave  explicit  and  emphatic  warning,  that  no 
•principle  was  settled. 

In  all  the  three  courts,  the  restoration  of  the  Antelope,  and  of 
the  Africans  captured  by  the  Arraganta  on  board  of  her  to  the 
Spanish  claimants,  was  explicitly  decreed  on  the  fact  that  at  the 
time  of  her  expedition  from  the  Havana,  and  of  her  capture  by 
the  Arraganta  the  prohibition  of  the  slave  trade  by  the  King  of 
Spain  had  not  yet  taken  effect.  All  the  courts  agreed  that  if  the 
case  had  occurred  after  the  abolition  of  the  trade  by  Spain,  the 
judgment  would  have  been  different.  That  is,  it  must  and  would 
have  been  the  emancipation  and  the  restoration  to  their  native 
country  as  freemen,  of  every  individual  African  captured  by  Cap- 
tain Jackson  in  the  Antelope. 

With  what  color  of  reason  then  was  the  case  of  the  Antelope 
made  the  corner  stone  of  the  Attorney  General’s  report  to  the 
President  of  the  United  States,  that  the  captives  of  the  Amistad 
should  be,  by  mere  Executive  warrant,  delivered  up  in  a mass,  un- 
told and  unidentified,  to  the  Spanish  minister.  Whatever  there 
was  or  could  be  of  authority  in  the  case  of  the  Antelope  led  di- 
rectly to  the  opposite  conclusion.  The  Supreme  Court  had  top- 


-led  down  headlong  the  decree  of  the  Circuit  Court  for  the  dis- 
tribution of  the  victims  between  the  Spanish  and  Portuguese 
Vice  Consuls  hy  lot.  f hey  had  scattered  to  the  winds  this  gam- 
bling of  human  bones,  this  cross  and  pile  distribution  of  justice 
between  liberty  and  bondage.  They  had  rescued  from  the  grasp 
of  the  overseer  ail  the  prisoners  taken  from  the  ressels  bearing 
Portuguese  colors  ; they  had  exacted  proof  of  the  number  and 
identification  of  the  individuals,  to  be  given  up  to  the  Vice  Con- 
sul of  Spain.  They  had  allowed  salvage  for  them  to  captain  Jack- 
son,  to  be  deducted  from  their  estimated  value ; and  from  two 
hundred  and  ninety-six  adjudicated  by  the  courts  below,  to  per- 
petual slavery,  they  had  reduced  the  number  to  an  estimate  which 
could  not  exceed  thirty-nine.  The  only  principle  to  which  half 
the  court  adhered,  and  thereby  left  the  decree  of  the  Circuit 
Court  unreversed  was,  that  the  Spanish  prohibition  of  the  slave 
trade  had  not  quickened  into  life  quite  in  time  to  save  these  thir- 
ty-nine unfortunates  from  the  clutches  of  their  oppressors. 

Apply  these  principles  to  the  case  of  the  Amistad  captives. 
They  had  been  imported  into  the  Havana  in  open  and  undisguised 
defiance  of  the  Spanish  prohibition  of  the  slave  trade  enacted 
nearly  twenty  years  before  : hut  connived  at  by  the  Spanish  au- 
thorities in  Cuba  for  gold — for  a doubloon  a head.  They  had  been 
shipped  coast-wise,  in  continuance  and  for  consummation  of  the 
slave-trading  voyage  from  Africa.  They  had  been  clandestinely 
transferred  to  Ruiz  and  Montes,  who  were  furnished  with  printed 
pretended  passports,  false  and  fraudulent  upon  their  face,  and  these 
were  the  only  title  to  property  they  could  show.  The  captives 
of  the  Amistad  were,  when  taken  by  Lieut.  Gedney,  not  even  in 
the  condition  of  slaves:  they  were  freemen,  in  possession  not  only 
of  themselves,  but  of  the  vessel  with  which  they  were  navigating 
the  common  property  and  jurisdiction  of  all  nations,  the  Ocean : 
in  possession  of  the  cargo  of  the  vessel,  and  of  the  Spaniards  Ru- 
iz and  Montes  themselves.  Lieut.  Gedney  seized  them  as  charg- 
ed with  the  crimes  of  piracy  and  murder.  The  eaptives  of  the 
Antelope  were  taken  by  Captain  Jackson  in  the  condition  of 
slaves.  The  courts  of  the  United  States  were  not  called  on  to 
change  their  condition.  The  courts  of  the  United  must  have  en- 
slared  the  captives  of  the  Amistad  before  they  could  restore  them 
to  their  pretended  masters. 

The  decision  of  the  courts  of  the  United  States  against  the  cap- 


123 


tires  of  the  Antelope  were  all  apologetic.  They  leaned  almost 
entirely  upon  a decision  of  Sir  William  Scott  in  the  case  of  the 
Louis,  apparently  if  not  really  conflicting  with  that  of  Sir  William 
Grant  in  the  case  of  the  Amedee.  It  is  apparent  that  the  Admi- 
ralty Courts  of  Great  Britain  hare  been  dirided  on  the  question 
not  less  than  those  of  the  United  States.  Sir  William  Scott,  who. 
during  the  war  of  the  French  Revolution,  had  been  the  main  pil- 
lar of  belligerent  rights  and  arbitrary  searches  and  visitations  of 
neutral  vessels,  after  the  peace  and  the  agitation  of  the  slavery 
question  among  all  the  nations  of  Europe,  took  a very  different 
lurch,  and  became  the  most  fervent  champion  of  the  slave  trade 
and  of  the  unqualified  exemption  of  all  merchant  vessels  from  visi- 
tation or  search  by  the  armed  ships  of  every  nation  other  than 
their  own.  In  the  case  of  the  slave  Grace,  he  decided  that  a West 
Indian  female  slave  following  her  mistress  to  England,  and  eman- 
cipated by  mere  contact  with  English  soil,  became  re-enslaved  by 
returning  to  the  West  Indian  Islands, — a decision  the  reverse  of 
which  has  been  repeatedly  decided  in  one  of  the  principal  slave 
states  of  this  Union.  In  the  case  of  the  Louis  he  laid  it  down  in 
most  unqualified  terms,  which  Chief  Justice  Marshall  in  the  case 
of  the  Antelope  repeats  with  seeming  approbation,  that  the  right 
of  search  is  confined  to  a state  of  war.  That  it  is  a right  strictly 
belligerent  in  its  character,  which  can  never  be  exercised  by  a na- 
tion at  peace,  except  against  professed  pirates,  who  are  the  ene- 
mies of  the  human  race  : a position  which,  if  true,  would  at  once 
decide  that  both  the  capture  of  the  Antelope  by  Captain  Jackson, 
and  of  the  Amistad  by  Lieut.  Gedney,  were  unlawful  and  unjustifi- 
able. I must  pause  before  I assent  to  the  doctrine  to  that  extent. 

In  the  same  case  of  the  Louis,  Sir  William  Scott  travels  out  of 
his  record,  to  start  a hypothetical  objection  to  the  universality  of 
this  exemption  of  foreign  vessels  from  visitation  and  search.  It 
is  pressed  as  a difficulty,”  says  the  Judge,  “ what  is  to  be  done, 
if  a French  ship  laden  with  slaves  is  brought  in  ? I answer  with- 
out hesitation,  restore  the  possession  which  has  been  unlawfully 
divested:  rescind  the  illegal  act  done  by  your  own  subject,  and 
leave  the  foreigner  to  the  justice  of  his  own  country.” 

Chief  Justice  Marshall,  in  the  case  of  the  Antelope,  cites  also 
this  passage  of  the  decision  of  Sir  William  Scott;  but  besides 
that  it  is  a mere  obiter  dictum  upon  an  imaginary  case  not  before 
the  court,  it  is  assuredly  not  law  within  these  United  States.  By 


124. 


the  act  of  Congress  of  2d  of  March,  1799,  to  regulate  the  collec- 
tion of  duties,  &c.,  [section  99.  U.  S.  Laws  3,  226,]  “ the  officers 
of  the  revenue  cutters  are  authorized,  required  and  directed  to 
go  on  board  all  ships  or  vessels  which  shall  arrive  within  the  Unit- 
ed States,  or  within  four  leugues  of  the  coast  thereof  if  bound  for 
the  United  States,  and  to  search  and  examine  the  same,  and  every 
part  thereof,”  for  the  purposes  of  revenue. 

By  the  act  of  2d  of  March,  1807,  to  prohibit  the  importation  of 
slaves  into  the  United  States,  [section  7,  U.  S.  Laws  2,  96,]  it  is 
provided  that  ‘“if  any  ship  or  vessel  shall  be  found,  from  and  af- 
ter the  first  day  of  January,  1808,  in  any  river,  port,  bay,  or  har- 
bor, or  on  the  high  seas , within  the  jurisdictional  limits  of  the 
United  States,  or  hovering  on  the  coast  thereof,  having  on  board 
any  negro,  mulato,  or  person  of  color,  for  the  purpose  of  selling 
them  as  slaves,  or  with  intent  to  land  the  same  in  any  port  or 
place  within  the  jurisdiction  of  the  United  States,  contrary  to  the 
prohibition  of  this  act,  every  such  ship  or  vessel,  together  with  her 
tackle,  apparel  and  furniture,  and  the  goods  or  effects  which  shall 
be  found  on  board  the  same,  shall  be  forfeited  to  the  use  of  the 
United  States,  and  maybe  seized,  prosecuted  and  condemned  in 
any  court  of  the  United  States  having  jurisdiction  thereof.  And 
it  shall  be  lawful  for  the  President  of  the  United  States,  and  he 
is  hereby  authorized,  should  he  deem  it  expedient,  to  cause  any  of 
the  armed  vessels  of  the  United  States,  to  be  manned  and  employ- 
ed to  cruise  on  any  part  of  the  coast  of  the  United  States,  or  ter- 
ritories thereof,  where  he  may  judge  attempts  will  be  made  to  vi. 
date  the  provisions  of  this  act,  and  to  instruct  and  direct  the 
commanders  of  armed  vessels  of  the  United  States,  to  seize,  take, 
and  bring  into  any  port  of  the  United  States  all  such  ships  or  ves- 
sels, and  moreover  to  seize,  take  and  bring  into  any  port  of  the 
United  States,  all  ships  or  vessels  of  the  United  States  wheresoever 
found  on  the  high  seas,  contravening  the  provisions  of  this  act,  to 
be  proceeded  against  according  to  law,”  &c. 

Here  then  are  two  very  extensive  limitations,  by  the  laws  of  the 
United  States,  upon  the  doctrines  of  Sir  William  Scott,  pronounced 
in  the  case  of  the  Louis.  These  limitations  embrace  both  the 
cases  of  the  Antelope  and  of  the  Aroistad.  Yet  in  the  case  of  the 
Antelope,  Chief  Justice  Marshall  cites  the  opinions  of  Sir  William 
Scott  in  the  case  of  the  Louis,  without  any  notice  whatever  of 
the  statute  laws  of  the  United  States  contradictory  to  those  opin- 


125 


ions,  and  the  Attorney  General  Grundy  cites,  in  the  case  of  the 
Amistad,  the  opinons  of  Chief  Justice  Marshall  in  that  of  the  An- 
telope, as  authority  for  a principle  which  in  that  very  opinion  the 
Chief  justice  declares  is  not  settled. 

The  truth  is,  that  the  opinions  of  Sir  William  Scott  in  the  case 
of  the  Louis,  have  reference  only  to  the  slave  trade,  and  the  ship- 
ment of  slaves  on  the  coast  of  Africa  : the  case  of  the  Antelope 
was  for  the  violation  of  the  laws  of  the  United  States  against  the 
importation  of  slaves  into  the  United  States  for  sale.  In  all  these 
cases  the  right  of  visitation  and  search  of  foreign  vessels  is  not  a 
merely  belligerent  right ; it  is  exercised  at  all  times,  in  peace  or 
war,  and  if  a French  ship  laden  with  slaves  were  found  hovering 
on  the  coast  of  the  United  States,  or  within  at  least  four  leagues 
of  their  shores,  and  brought  in,  neither  would  the  possession  be 
unlawfully  divested,  nor  would  the  foreigner  be  left  to  the  justice 
of  his  own  country.  There  is  no  act  of  Parliament  against  the 
importation  of  slaves  into  England  for  sale  : the  opinions  of  Sir 
William  Scott  look  to  no  such  case,  for  no  such  crime  could  then 
be  committed.  They  had  no  application  therefore  to  the  case  of 
the  Antelope,  and  were  very  erroneously  cited  as  warranting  the 
surrender  of  that  vessel  and  her  cargo  of  Africans  to  the  Spanish 
claimants. 

I have  said  that  the  decisions  of  all  the  courts  of  the  United 
States  in  that  case  directing  that  surrender,  are  apologetic.  They 
admit  that  the  traffic  in  slaves  is  contrary  to  the  law  of  na- 
ture ; that  it  is  inhuman,  cruel,  odious,  detestable  ; but  that  it  is 
not  contrary  to  the  law  of  nations,  and  therefore  must  be  acknowl- 
edged, defended,  protected  and  carried  into  execution  for  other 
nations  by  the  Courts  of  the  United  States,  although  as  abhorrent 
to  our  laws  as  to  the  laws  of  nature.  For  this  distinction  also,  our 
courts  are  indebted  to  Sir  William  Scott,  whose  ingenuity  in  that 
same  case  of  the  Louis,  lays  down  the  following  position,  cited 
also  approvingly,  by  Chief  Justice  Marshall,  in  his  opinion  upon 
the  case  of  the  Antelope. 

“A  court,”  says  the  British  Judge,  “ in  the  administration  of 
law,  cannot  attribute  criminality  to  an  act  where  the  law  imputes 
none.  It  must  look  to  the  legal  standard  of  morality  ; and  upon 
a question  of  this  nature,  that  standard  must  be  found  in  the  law 
of  nations,  as  fixed  and  evidenced  by  general  and  ancient  and  ad- 
mitted practice,  by  treaties,  and  by  the  general  tenor  of  the  laws 


126 


and  ordinances,  and  the  formal  transactions  of  civilized  states: 
and  looking  to  these  authorities,  he  found  a difficulty  in  maintain- 
ing that  the  transaction  was  legally  criminal.” 

In  the  Declaration  of  Independence  the  Laws  of  Nature  are  an- 
nounced and  appealed  to  as  identical  with  the  laws  of  nature’s 
God,  and  as  the  foundation  of  all  obligatory  human  laws.  But. 
here  Sir  William  Scott  proclaims  a legal  standard  of  morality , dif- 
fering from,  opposed  to,  and  transcending  the  standard  of  nature 
and  of  nature’s  God.  This  legal  standard  of  morality  must,  he 
says,  in  the  administration  of  law,  be  held,  by  a Court,  to  super- 
sede the  laws  of  God,  and  justify,  before  the  tribunals  of  man,  the 
most  atrocious  of  crimes  in  the  eyes  of  God.  With  such  a prin- 
ciple it  is  not  surprising  that  Sir  William  Scott  should  have  found 
a difficulty  in  maintaining  that  the  African  slave  trade  was  legally 
criminal,  nor  that  one  half  the  Supreme  Court  of  the  United  States 
should  have  adopted  his  conclusions.  It  is  consolatory  to  the 
friends  of  human  virtue  and  of  human  freedom  to  know,  that  this 
error  of  the  first  concoction,  in  the  moral  principle  of  a British 
judge,  has  been,  so  far  as  relates  to  the  African  slave  trade,  laid 
prostrate  by  the  moral  sense  of  his  own  country,  which  has  over- 
come the  difficulty  of  finding  the  slave  trade  criminal,  by  the  legal 
and  national  abolition  of  slavery  itself. 

The  decree  of  the  Supreme  Court,  in  1825,  “ proceeding  to  give 
such  decree  as  the  Circuit  Court  ought  to  have  given,  did  direct 
and  order  that  the  restitution  to  be  made  to  the  Spanish  claimant 
should  be  according  to  the  ratio  which  93  (instead  of  166)  bears  to 
the  whole  number,  comprehending  as  well  those  originally  on  board 
the  Antelope  as  those  which  were  put  on  board  that  vessel  by  the 
captain  of  the  Arraganta.  After  making  the  apportionment  ac- 
cording to  this  ratio,  and  deducting  from  the  number  the  rateable 
loss  which  must  fall  on  the  slaves,  to  which  the  Spanish  claimants 
were  originally  entitled,  the  residue  of  the  said  93  were  to  be  de- 
livered to  the  Spanish  claimant,  on  the  terms  mentioned  in  the 
decree  of  the  Circuit  Court : and  all  the  remaining  Africans  were 
to  be  delivered  to  the  United  States,  to  be  disposed  of  according 
to  law.” 

A mandate  issued  to  the  Circuit  Court  for  the  district  of  Geor- 
gia for  the  execution  of  this  decree.  One  would  suppose  that  the 
Supreme  Court  had  sufficiently  manifested  its  disapprobation  of 
the  mode  of  settling  the  question  of  freedom  and  slavery,  by  lot 


127 


and  yet  was  their  decree,  on  this  point,  not  so  explicit,  "but  that 
one  of  the  two  judges  of  the  Circuit  Court  believed  that  the  selec- 
tion between  the  Africans  to  be  delivered  to  the  Spanish  claimants 
as  slaves,  and  those  claimed  by  the  Portuguese  Vice  Consul,  but 
whom  the  Supreme  Court  had  declared  free,  might  still  be  made 
by  lot.  The  other  judge  understood  better  the  spirit  of  the  Su- 
preme tribunal ; and  hence  arose  a difference  of  opinion  between 
the  two  judges  of  the  Circuit  Court,  which  sent  the  case  back  for 
a second  judgment  of  the  appellate  court.  The  second  judgment 
of  the  Supreme  Court,  in  the  case  of  the  Antelope,  was  rendered 
at  their  February  term,  1826,  and  is  reported  (11  Wheaton,  413) 
as  follows  : — “ Certificate. — A mandate  having  issued  to  the  Cir- 
cuit Court  for  the  District  of  Georgia,  to  carry  into  execution  the 
decree  of  this  Court,  pronounced  at  the  February  term,  1825,  to 
deliver  certain  Africans,  in  the  said  decree  mentioned,  to  the  Span- 
ish Consul  for  Spanish  claimants;  and  the  judges  of  that  court 
having  been  divided  in  opinion  respecting  the  mode  of  designating 
the  said  slaves  to  be  delivered,  and  separating  them  from  others  to 
be  delivered  to  the  United  States,  whether  the  same  should  be 
made  by  lot,  or  upon  proof  on  the  part  of  the  Spanish  claimant,  it 
is  ordered  to  be  certified  to  the  said  Circuit  Court  of  Georgia^ 
that,  in  executing  the  said  mandate,  the  Africans  to  be  delivered 
must  be  designated  b y proof  made  to  the  satisfaction  of  the  Court.’5 

To  understand  this  difference  of  opinion,  with  regard  to  the 
mode  of  designating  the  Africans  to  be  delivered  up  to  the  Span- 
ish claimant  and  to  slavery,  it  is  to  be  remembered,  that  the  libel 
of  the  Spanish  Vice  Consul  before  the  District  Court  had  claimed 
150  of  the  Africans  captured  by  Captain  Jackson,  and  the  libel  of 
the  Portuguese  Vice  Consul  130.  That  the  decree  of  the  District 
Court,  founded  on  the  report  of  the  clerk,  had  awarded  142  of  the 
212  surviving  Africans  to  the  Portuguese,  and  63  to  the  Spanish 
Vice  Consul ; while  the  subsequent  decree  of  the  Circuit  Court, 
after  a delay  of  one  term  and  the  admission  of  further  evidence, 
had  allotted  in  the  ratio  of  166  to  the  Spanish,  and  130  to  the  Por. 
tuguese  claimants.  That  is,  deducting  from  the  Spanish  number 
the  16  persons  drawn  by  lot  and  liberated,  this  decree  gave  to  the 
Spanish  and  Portuguese  Vice  Consuls  the  ratio  of  the  full  number 
claimed  by  each  of  them  in  his  respective  libel.  The  Supreme 
Court,  reversing  this  decree  of  the  Circuit  Court,  had  directed 
that  the  ratio  of  the  whole  number,  to  be  delivered  up  to  the  Spam 


128 


ish  Vice  Consul  should  be  reduced  from  166  to  93 ; and  that  nutn* 
her  was  still  to  he  reduced  by  the  rateable  loss,  which  the  clerk 
of  the  District  Court  had  reported  to  be  30.  And  all  the  rest,  by 
the  decree  of  the  Supreme  Court,  were  to  be  liberated.  If,  then? 
the  Africans  to  be  delivered  to  the  Spanish  Vice  Consul  had  been 
drawn  from  the  whole  number  by  lot , he  would  have  received  63 . 
but  the  Supreme  Court  having,  upon  this  second  appeal,  decreed 
that  the  Spanish  claimant  must  identify  by  proof  of  having  been 
taken  by  the  Arraganta,  in  the  Antelope,  every  individual , to  be 
delivered  up  to  him,  explicitly  rejected,  for  the  second  time,  the 
lot,  as  a mode  of  ascertaining  freemen  among  slaves,  and  actually 
diminished  the  number  of  victims  delivered  up  to  the  Spaniard, 
from  63  to  39.  And  this  was  the  number  finally  delivered  up  by 
the  decree  of  the  Supreme  Court  of  the  United  States  of  the  cap- 
tives of  the  Antelope  to  the  Spanish  Vice  Consul.  But  this  was 
not  the  last  decision  of  the  Supreme  Court  in  the  case. 

It  was  remanded  to  the  Circuit  Court,  with  directions  to  make  a 
final  disposition  of  the  controversy  between  the  parties  pursuant 
to  the  principles  of  the  decrees  of  1825  and  1826.  And  now  came 
up  the  question,  to  use  a vulgar  but  significant  phrase,  Who  should 
pay  the  piper  1 

“ The  Circuit  Court,  [says  the  Report,  12  Wheaton,  547,]  in 
order  to  enable  it  to  decree  finally  in  the  case,  directed  the  regis- 
ter to  take  and  report  an  account  of  the  costs,  and  also  of  the  ex- 
penses of  keeping,  maintaining,  &c.  of  the  Africans,  by  the  mar- 
shal, and  which  account  (amounting  to  upwards  of  thirty-six  thou- 
sand dollars)  was  accordingly  reported.  Exceptions  were  filed  to 
the  report  by  both  the  Portuguese  and  Spanish  claimants.  The 
Circuit  Court  also  caused  proofs  to  be  taken,  for  the  purpose  of 
identifying  individually  the  Africans  to  be  delivered  to  the  Span- 
ish claimants,  as  directed  by  the  decree  of  1826. 

Thus  circumstanced,  the  case  came  on  for  final  hearing  before 
the  Circuit  Court.  The  Court  decreed  that  the  Portuguese  claimant 
should  not  be  made  liable  for  costs,  or  any  proportion  of  the  ex- 
penses and  charges  of  the  marshal,  for  maintaining,  &c.  the  Afri- 
cans: and  being  of  opinion  that  39  of  the  Africans  were  sufficient- 
ly identified,  by  proof,  as  being  the  property  of  the  Spanish  claim- 
ants, directed  the  39  Africans,  so  identified,  to  be  delivered  to  the 
Spanish  claimants,  upon  their  paying  a proportion  of  the  costs 
and  expenses  reported  by  the  registrar,  in  the  ratio  of  the  number 


129 


of  Africans  delivered  to  the  whole  number.  And  the  Circuit  Court 
was  further  of  opinion,  that  the  residue  of  the  Africans  not  direct- 
ed to  he  delivered  to  the  Spanish  claimants  should  be  delivered  to 
the  United  States,  to  be  disposed  of  according  to  law  : but  on  the 
question,  whethersthey  shall  be  delivered  absolutely,  or  on  condition 
of  payment  of  the  balance  of  the  expenses  which  will  remain  un- 
satisfied, after  charging  the  Africans  adjudged  to  the  Spanish 
claimants  in  their  due  ratio,  the  judges  of  the  Circuit  Court  being 
divided  in  opinion,  ordered  this  difference  of  opinion  to  be  ‘‘  cer- 
tified to  this  Court.” 

The  United  States  District  Attorney  appealed  from  so  much  of 
this  final  order  of  the  Circuit  Court  as  related  to  the  apportion- 
ment among  tlje  several  parties  of  the  costs  and  expenses  in  the 
preservation,  maintenance,  and  custody  of  the  said  Africans,  and 
of  the  costs  and  expenses  of  the  various  proceedings  had  in  rela- 
tion to  the  said  Africans ; and  also  from  so  much  of  said  order  as 
decreed  39  of  the  said  Africans  to  the  Spanish  claimants. 

So  extraordinary,  so  anti-judicial  is  everything  upon  the  records 
in  this  case  of  the  Antelope,  that  the  Supreme  Court  actually  did 
not  know  what  was  the  question  upon  which  the  judges  of  the  Cir- 
cuit Court  wrere  opposed  in  opinion — they  supposed  it  was,  whether 
the  Africans  not  directed  to  be  delivered  to  the  Spanish  claimants 
should  be  delivered  by  the  marshal  to  the  United  States,  absolute- 
ly and  unconditionally,  to  be  disposed  of  according  to  law,  that  is, 
to  be  liberated  and  sent  home ; or  whether  it  should  be  imposed 
on  the  United  States,  as  a condition  precedent  to  their  delivery, 
that  the  United  States  should  pay  to  the  marshal  his  claim  for 
expenses,  at  the  rate  of  sixteen  cents  a day  for  each  African,  (for 
several  years)  in  the  ratio  of  the  number  to  be  delivered  to  the 
United  States. 

This,  it  will  be  perceived,  was  still  the  question  of  freedom  or 
slavery  to  the  poor  Africans.  If  the  decree  had  been,  that  the 
payment  of  these  expenses,  amounting  to  about  350  dollars  a head) 
was  a condition  precedent  to  their  delivery  to  the  United  States 
in  the  event  of  nonpayment,  the  marshal  had  a lien  upon  the  Afri- 
cans, and  they  would  have  been  his  slaves. 

The  mode  of  proof  admitted  by  the  Circuit  Court  to  identify  the 
individuals  to  be  doomed  to  slavery  and  delivery  to  the  Spanish 
claimants  cannot  commend  itself  to  the  sense  of  justice,  of  human- 
ity, or  of  freedom.  Fifty  of  them,  employed  upon  the  fortifications, 
17 


130 


had  been  selected  by  the  marshal,  and  recognised  by  a man  named 
Grondona,  who  had  been  second  officer  on  board  the  Antelope 
when  the  slaves  were  purchased  and  shipped  in  Africa.  Grondona 
had  since  disappeared,  and  was  said  to  be  dead  ; but  there  were 
witnesses  in  Court  who  had  been  present  at  the  examination  when 
Grondona  recognized  thirty-four  of  the  negroes  and  they  him,  by 
speaking  together,  and  by  signs,  though  the  witnesses  knew  no- 
thing of  the  language  in  which  they  spoke.  Other  witnesses  tes- 
tified to  his  having  recognized  five  more.  The  Africans  had  no 
notice  that  their  fate,  as  freemen  or  slaves,  was  to  depend  on  this 
recognition.  They  had  no  one  to  defend  them,  and  protest  for 
them,  against  the  manner  of  disposing  of  their  freedom.  The  ex- 
amination was  in  open  court,  but  the  only  evidence  furnished  was 
testimony  to  individuals  whom  Grondona  had  recognized  and  who 
had  recognized  him.  Hearsay  evidence  of  one  whose  language 
the  witnesses  did  not  understand  ! 

Yet  the  Supreme  Court  thought  this  evidence  sufficient,  under 
the  very  peculiar  circumstances  of  this  case,  reasonably  to  satisfy  the 
mind  of  the  identity  of  thirty-nine  of  the  Africans,  as  belonging  to 
the  Spanish  claimants,  and  affirmed  the  decree  of  the  Circuit 
Court  for  their  delivery  up  to  the  Spanish  Vice  Consul. 

Under  the  very  peculiar  circumstances  of  the  case , in  order  to  en- 
slave 39  Human  beings,  otherwise  entitled  to  freedom,  evidence 
was  deemed  sufficient,  which,  upon  an  ordinary  question  of  pro- 
perty, of  five  dollars  value,  between  man  and  man,  would  have  been 
rejected  as  inadmissible. 

The  very  peculiar  circumstances  of  the  case  are  quite  as  strongly 
marked,  in  the  opinion  of  the  judge  of  the  Circuit  Court,  in  De- 
cember, 1826,  as  they  had  been  in  his  preceding  opinion,  delivered 
in  1821.  In  apologizing  for  the  enormous  amount  of  the  marshal’s 
bill,  allowed  by  the  court,  which  he  is  aware  must  expose  the 
court,  and  the  administration  of  justice  in  the  country,  to  certain 
imputations,  he  says,  “ What  could  the  court  do  I The  United 
States  regard  the  subjects  of  this  suit  as  men  and  not  things. 
They  could  not  be  sold,  and  the  money  lodged  in  the  registry. 
They  were  then  prisoners,  and  necessarily  to  be  kept  and  treated 
as  such.”  Had  he  judge  allowed  his  reason  to  advance  one  step 
further,  he  would  have  seen,  that  precisely  because  they  were 
men  and  not  things,  precisely  because  they  could  not  be  sold,  pre- 
cisely because  they  must  be  kept  and  treated,  if  at  all,  as  prison- 


131 


ers,  they  could  not  be  restored  entire  as  merchandize,  nor,  there- 
fore, come  within  the  purview  of  the  9th  article  of  our  treaty  with 
Spain. 

“The  next  question,”  says  the  judge  of  the  Circuit  Court,  “ is, 
by  whom  these  costs  are  to  be  paid  1 That  the  maintenance  of 
the  Africans  was  a legal  charge  on  the  United  States,  in  the  first 
instance,  is  perfectly  clear.  By  the  act  of  February  28,  1799,  in 
forcing  them  into  the  hands  of  the  marshal , the  United  States  be- 
came bound  for  their  subsistence.” 

The  judge  of  the  Circuit  Court  further  affirms,  that  the  Supreme 
Court,  by  its  decree  of  1825,  and  explanatory  decree  of  1826,  es- 
tablished seven  principles;  the  first  of  which,  in  his  enumeration, 
is — “ That  the  law  of  nations  recognized  both  slavery  and  the  slave- 
trade 

But  Chief  Justice  Marshall,  in  delivering  the  opinion  and  pro- 
nouncing the  decree  of  the  Supreme  Court  in  1825,  declared  that, 
on  the  question  of  the  restitution  to  the  Spanish  claimant,  which 
depended  entirely  upon  the  recognition  of  the  slave-trade  by  the 
law  of  nations,  “ the  Court  is  divided  on  it,  and,  consequently,  no 
PRINCIPLE  IS  SETTLED.” 

The  judge  of  the  Circuit  Court  was,  therefore,  in  manifest  error 
when  he  said  that  the  Supreme  Court  had,  by  the  decrees  of  1825 
and  1826,  established  the  principle,  that  the  law  of  nations  recog- 
nized both  slavery  and  the  slave-trade.  And  this  mistake  discloses 
the  source  of  that  great  perplexity,  which  troubles  him,  to  find  a 
consistency  between  the  principle  which  he  erroneously  supposes 
them  to  have  established,  and  their  decree  for  carrying  it  into 
execution.  It  is  not  our  business  to  inquire  into  the  reasons  of 
that  Court.  “ We  must  give  effect  to  it  according  to  what  we 
understand  to  be  its  meaning.  And,  upon  collating  and  combin- 
ing their  decree  of  1825  with  the  explanatory  decree  of  1826,  the 
two  will  be  found  to  amount  to  this — that  the  rights  of  the  Span- 
iards shall  be  recognized ; but,  in  reducing  that  right  to  possession, 
they  shall  be  held  to  have  established  a claim  originally  to  ninety- 
three,  which  number  shall  be  reduced  by  the  average  of  deaths  ; 
and  to  the  number  so  ascertained,  they  shall  be  held  to  produce 
proof  of  individual  identity.  But  all  the  cargo,  with  the  excep- 
tion of  those  to  be  thus  identified,  shall  be  delivered  over  to  the 
United  States.  This  will  be  doing  what  that  Court  certainly  in- 


132 


tended  to  do  : it  will  make  a final  disposition  of  a most  trouble- 
some  charge.  It  is  our  duty  (says  he)  to  find  out  the  meaning  of 
the  decree  of  the  Supreme  Court,  and  to  obey  it.  And  here  it  is 
evident,  that  although  their  reasoning,  and  the  principles  recog- 
nized, would  seem  to  go  fully  up  to  the  maintenance  of  the  Span- 
ish right,  yet  the  decree,  in  its  details,  sustains  those  rights  under 
very  important  limits  and  modifications.” 

And  such  is  the  history  of  the  case  of  the  Antelope  in  the  judi- 
cial tribunals  of  the  United  States.  That  vessel,  commanded  by 
a citizen  of  the  United  States,  was  taken  in  the  very  act  of  smug- 
gling 258  Africans  into  the  United  States  for  sale  as  slaves,  and 
by  the  plain,  unquestionable  letter  of  the  4th  section  of  an  act  of 
Congress  of  20th  April,  1818,  was  forfeited;  while,  by  an  act  in 
addition  to  the  acts  prohibiting  the  slave-trade,  of  3d  March, 
1819,  every  African  thus  imported  in  the  Antelope  was  made  free, 
—subject  only  to  safe  keeping,  support,  and  removal  beyond  the 
limits  of  the  United  States,  by  direction  of  their  President. 

After  seven  years  of  litigation  in  the  Courts  of  the  United 
States,  and,  of  course,  of  captivity  to  nearly  all  of  these  Africans 
who  survived  the  operation  ; after  decrees  of  the  District  Court, 
reversed  by  the  Circuit  Court,  and  three  successive  annual  rever- 
sals by  the  Supreme  Court  of  the  decrees  of  the  Circuit  Court ; 
what  was  the  result  of  this  most  troublesome  charge  ? 

The  vessel  was  restored  to  certain  Spanish  slave-traders  in  the 
island  of  Cuba.  Of  the  Africans,  about  fifty  had  perished  by  the 
benignity  of  their  treatment  in  this  land  of  liberty,  during  its  sus- 
pended animation  as  to  them  ; sixteen,  drawn  by  lot  from  the 
whole  number,  (by  the  merciful  dispensation  of  the  Circuit  Court, 
under  the  arbitrary  enlargement  of  the  tender  mercies  of  the  Dis- 
trict Judge,  which  had  limited  the  number  to  seven,) — sixteen  had 
drawn  the  prize  of  liberty , to  which  the  whole  number  were  enti- 
tled by  the  letter  of  the  law  ; and,  of  the  remainder,  thirty-nine, 
upon  evidence  inadmissible  upon  the  most  trifling  question  of 
property  in  any  court  of  justice,  were,  under  the  very  peculiar  cir- 
cumstances of  the  case,  surrendered ! delivered  up  to  the  Spanish 
vice-consul — as  slaves  ! To  the  rest  was  at  last  extended  the 
benefit  of  the  laws  which  had  foreordained  their  emancipation. 
They  were  delivered  over  to  safe  keeping,  support,  and  transpor- 
tation, as  freemen,  beyond  the  limits  of  the  United  States,  by  the 
Chief  Magistrate  of  the  Union. 


133 


And  now,  by  what  possible  process  of  reasoning  can  any  decis- 
ion of  the  Supreme  Court  of  the  United  States  in  the  case  of  the 
Antelope,  be  adduced  as  authorizing  the  President  of  the  United 
States  to  seize  and  deliver  up  to  the  order  of  the  Spanish  minister 
the  captives  of  the  Amistad  1 Even  the  judge  of  the  District 
Court  in  Georgia,  who  would  have  enslaved  all  the  unfortunates 
of  the  Antelope  but  seven,  distinctly  admitted,  that,  if  they  had 
been  bought  in  Africa  after  the  prohibition  of  the  trade  by  Spain, 
he  would  have  liberated  them  all. 

In  delivering  the  opinion  of  the  Supreme  Court,  on  their  first 
decree  in  the  case  of  the  Antelope,  Chief  Justice  Marshall,  after 
reviewing  the  decisions  in  the  British  Courts  of  Admiralty,  says, 
“ The  principle  common  to  these  cases  is,  that  the  legality  of  the 
capture  of  a vessel  engaged  in  the  slave-trade  depends  on  the  law 
of  the  country  to  which  the  vessel  belongs.  If  that  law  gives  its 
sanction  to  the  trade,  restitution  will  be  decreed  : if  that  law  pro- 
hibits it,  the  vessel  and  cargo  will  be  condemned  as  good  prize.” 

It  was  by  the  application  of  this  principle,  to  the  fact,  that,  at 
the  time  when  the  Antelope  was  taken  by  the  Arraganta,  the 
slave-trade,  in  which  the  Antelope  was  engaged,  had  not  yet  been 
made  unlawful  by  Spain,  that  the  Supreme  Court  affirmed  so  much 
of  the  decree  of  the  Circuit  Court  as  directed  restitution  to  the 
Spanish  claimant  of  the  Africans  found  on  board  the  Antelope 
when  captured  by  the  Arraganta. 

But  by  the  same  identical  principle , applied  to  the  case  of  the 
Amistad,  if,  when  captured  by  Lieutenant  Gedney,  she  and  her 
cargo  had  been  in  possession  of  the  Spaniards,  and  the  Africans 
in  the  condition  of  slaves,  the  vessel  would  have  been  condemned, 
and  the  slaves  liberated,  by  the  laws  of  the  United  States  ; because 
she  was  engaged  in  the  slave-trade  in  violation  of  the  laws  of 
Spain.  She  was  in  possession  of  the  Africans,  self-emancipated, 
and  not  in  the  condition  of  slaves.  That , surely,  could  not  legal- 
ize the  trade  in  which  she  had  been  engaged.  By  the  principle 
asserted  in  the  opinion  of  the  Supreme  Court,  declared  by  Chief 
Justice  Marshall,  it  would  have  saved  the  vessel,  at  once,  from 
condemnation  and  from  restitution,  and  would  have  relieved  the 
Court  from  the  necessity  of  restoring  to  the  Africans  their  free- 
dom. Thus  the  opinion  of  the  Supreme  Court,  as  declared  by  the 
Chief  Justice,  in  the  case  of  the  Antelope,  was  a fact,  an  authority 
in  point,  against  the  surrender  of  the  Amistad,  and  in  favor  of  the 


134. 


liberation  of  the  Africans  taken  in  her,  even  if  they  had  been, 
when  taken,  in  the  condition  of  slaves.  How  monstrous,  then,  is 
the  claim  upon  the  Courts  of  the  United  States  to  re-inslave  them, 
as  thralls  to  the  Spaniards,  Ruiz  and  Montes  ! or  to  transport 
them  beyond  the  seas,  at  the  demand  of  the  Minister  of  Spain  ! 

I said,  when  I began  this  plea,  that  my  final  reliance  for  success 
in  this  case  was  on  this  Court  as  a court  of  JUSTICE  ; and  in  the 
confidence  this  fact  inspired,  that,  in  the  administration  of  justice, 
in  a case  of  no  less  importance  than  the  liberty  and  the  life  of  a 
large  number  of  persons,  this  Court  would  not  decide  but  on  a due 
consideration  of  all  the  rights,  both  natural  and  social,  of  every 
one  of  these  individuals.  I have  endeavored  to  show  that  they 
are  entitled  to  their  liberty  from  this  Court.  I have  avoided,  pur- 
posely avoided,  and  this  Court  will  do  justice  to  the  motive  for 
which  I have  avoided,  a recurrence  to  those  first  principles  of 
liberty  which  might  well  have  been  invoked  in  the  argument  of 
this  cause.  I have  shown  that  Ruiz  and  Montes,  the  only  parties 
in  interest  here,  for  whose  sole  benefit  this  suit  is  carried  on  by 
the  Government,  were  acting  at  the  time  in  a way  that  is  forbid- 
den by  the  laws  of  Great  Britain,  of  Spain,  and  of  the  United 
States,  and  that  the  mere  signature  of  the  Governor  General  of 
Cuba  ought  not  to  prevail  over  the  ample  evidence  in  the  case 
that  these  negroes  were  free  and  had  a right  to  assert  their  liber- 
ty. I have  shown  that  the  papers  in  question  are  absolutely  null 
and  insufficient  as  passports  for  persons,  and  still  more  invalid  to 
convey  or  prove  a title  to  property. 

The  review  of  the  case  of  the  Antelope,  and  my  argument  in 
behalf  of  the  captives  of  the  Amistad,  is  closed. 

May  it  please  your  Honors:  On  the  7th  of  February,  1804,  now 
more  than  thirty-seven  years  past,  my  name  was  entered,  and  yet 
stands  recorded,  on  both  the  rolls,  as  one  of  the  Attorneys  and 
Counsellors  of  this  Court.  Five  years  later,  in  February  and 
March,  1809,  I appeared  for  the  last  time  before  this  Court,  in  de- 
fence of  the  cause  of  justice,  and  of  important  rights,  in  which 
many  of  my  fellow-citizens  had  property  to  a large  amount  at 
stake.  Very  shortly  afterwards,  I was  called  to  the  discharge  of 
other  duties — first  in  distant  lands,  and  in  later  years,  within  our 
own  country,  but  in  different  departments  of  her  Government. 


135 


Little  did  I imagine  that  I should  ever  again  be  required  to  claim 
the  right  of  appearing  in  the  capacity  of  an  officer  of  this  Court ; 
yet  such  has  been  the  dictate  of  my  destiny — and  I appear  again 
to  plead  the  cause  of  justice,  and  now  of  liberty  and  life,  in  be- 
half of  many  of  my  fellow  men,  before  that  same  Court,  which  in 
a former  age  I had  addressed  in  support  of  rights  of  property 
I stand  again,  I trust  for  the  last  time,  before  the  same  Court — 
“ hie  csestus,  artemque  repono.”  I stand  before  the  same  Court, 
but  not  before  the  same  judges — nor  aided  by  the  same  associates 
— nor  resisted  by  the  same  opponents.  As  I cast  my  eyes  along 
those  seats  of  honor  and  of  public  trust,  now  occupied  by  you, 
they  seek  in  vain  for  one  of  those  honored  and  honorable  persons 
whose  indulgence  listened  then  to  my  voice.  Marshall — Cushing — 
Chase  — Washington — Johnson — Livingston — Todd — Where  are 
they  1 Where  is  that  eloquent  statesman  and  learned  lawyer  who 
was  my  associate  counsel  in  the  management  of  that  cause,  Robert 
Goodloe  Harper  ? Where  is  that  brilliant  luminary,  so  long  the 
pride  of  Maryland  and  of  the  American  Bar,  then  my  opposing 
counsel,  Luther  Martin  ? Where  is  the  excellent  clerk  of  that 
day,  whose  name  has  been  inscribed  on  the  shores  of  Africa,  as  a 
monument  of  his  abhorrence  of  the  African  slave-trade,  Elias  B. 
Caldwell  1 Where  is  the  marshal — where  are  the  criers  of  the 
Court  1 Alas  ! where  is  one  of  the  very  judges  of  the  Court,  arbi- 
ters of  life  and  death,  before  whom  I commenced  this  anxious 
argument,  even  now  prematurely  closed  1 Where  are  they  all  "1 
Gone!  Gone!  All  gone  ! — Gone  from  the  services  which,  in  their 
day  and  generation,  they  faithfully  rendered  to  their  country. 
From  the  excellent  characters  which  they  sustained  in  life,  so  far 
as  I have  had  the  means  of  knowing,  I humbly  hope,  and  fondly 
trust,  that  they  have  gone  to  receive  the  rewards  of  blessedness 
on  high.  In  taking,  then,  my  final  leave  of  this  Bar,  and  of  this 
Honorable  Court,  I can  only  ejaculate  a fervent  petition  to  Heaven, 
that  every  member  of  it  may  go  to  his  final  account  with  as  little 
of  earthly  frailty  to  answer  for  as  those  illustrious  dead,  and  that 
you  may,  every  one,  after  the  close  of  a long  and  virtuous  career 
in  this  world,  be  received  at  the  portals  of  the  next  with  the  ap- 
proving sentence — “ Well  done,  good  and  faithful  servant ; enter 
thou  into  the  joy  of  thy  Lord.” 


. • * ■ 

'v*  V • . ’ 


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!§.!  •*  ? 


/ 


Date  Due 


■ 

Form  33 5.  45M  8-37. 

D00621976V 


973. 57  A214 


315392 


